RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
CLERK’S OFFICE
PEOPLE OF
THE STATE OF ILLINOIS,
)
MAR
1
52004
by LISA
MADIGAN, Attorney
General
)
STATE
OF ILLINOIS
ofthe State of Illinois,
)
POllution
Control Board
)
Complainant,
)
)
PCBNo.04-138
v.
)
(Enforcement
-
Water)
)
PII’~INACLECORPORATION
dlb/a
)
TOWN & COUNTRY HOMES,
)
an Illinois
Corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
GlennC.Sechen
Daniel C. Shapiro
Schain, Burney,
Ross & Citron, Ltd.
222 North LaSalle Street, Suite 1910
Chicago, Illinois 60601-1102
PLEASE TAKE NOTICE that I have today filed the
Complainant’s Response to
Respondent’s Motion to Dismiss
with the Office ofthe
Clerk of the Illinois Pollution Control
Board, a true and correct copy of which is
herewith served upon you.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State ofIllinois
BY:____
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph Street, Suite 2001
Chicago, Illinois
60601
Tel: (312)814-2069
Fax: (312)814-2347
This Filing is Printed
on Recycled Paper
CERTIFICATE OF SERVICE
I,
the undersigned, certify that I caused to be
served the attached
Complainant’s
Response to Respondent’s Motion to Dismiss by First
Class Mail, postage prepaid upon each
ofthe persons listed on the Notice ofFiling on March
15,
2004.
BY:____
MICHAEL C. PARTEE
I, the
undersigned, also certify that I caused to be
served
the Complainant’s Response to
Respondent’s Motion to Dismiss plus nine (9) copies ofthe
same by hand-delivery upon the
following person on March
15,
2004:
Pollution Control Board, Attention: Clerk
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
BY:
______________
MICHAEL C. PARTEE
RECEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARI~AR
152004
PEOPLE
OF
THE STATE OF
ILLINOIS,
)
STATE OF
ILLINOIS
by LISA MADIGAN, Attorney General
)
Pollution Control
Board
ofthe State of Illinois,
)
)
Complainant,
)
)
PCBNo.04-138
v.
)
(Enforcement
-
Water)
)
PINNACLE CORPORATION dlb/a
)
TOWN & COUNTRY HOMES,
)
an Illinois Corporation,
)
)
Respondent.
)
COMPLAINANT’S
RESPONSE
TO
RESPONDENT’S
MOTION TO DISMISS
NOW COMES Complainant, PEOPLE OF THE
STATE OF ILLINOIS (“People”), by
LISAMADIGAN, Attorney General ofthe State of Illinois, and herebyresponds to
Respondent’s, PTh1NACLE CORPORATION d/b/a TOWN & COUNTRY HOMES (“Town &
Country”), Motion to Dismiss Complaint as follows:
I.
INTRODUCTION
On February 2, 2004, the People filed a Complaint containing five counts against Town
& Country pursuant to the Illinois Environmental Protection Act (“Act”) (415 ILCS 5/1
et seq.
(2002)).
The Complaint alleges that Town &
Country caused, threatened or allowed water
pollution (Count I), caused or allowed the construction ofa sewer without a permit (Count II),
caused, threatened or allowed the discharge of contaminants without an NPDES storm water
discharge permit (Count III), failed to
submit plans and specifications for a public water supply
before construction (Count IV), and caused or allowed the construction or installation of a public
water supply without a permit (Count V).
On February
5,
2004, the Board entered an Order in which it summarized the allegations
in the Complaint and made
primafacie
finding that the Complaint meets the content
requirements of Board Procedural Rules
103.204(c) and (f) and
103.212(c)
(35
Ill. Adm.
Code
103.204(c) and (f) and
103.212(c)).
(Order at
1.)
Accordingly, the Board accepted the
Complaint for hearing and advised Town & Country that its failure to file an
answer to the
Complaint within 60 days after receiving it may have severe consequences.
(j4~)
On March 2, 2004, Town & Country filed a Motion to Dismiss Complaint (“Motion”).
Town & Country’s baseless Motion argues that the People’s Complaint “fails
to articulate the
nature, extent, duration and strength of discharges or omissions
sic
which Town & Country
allegedly caused.”
(Motion at 2-3.)
The Motion categorically argues that the Complaint fails to
meet the content requirements under Board Procedural Rule
103.204(c), which flies directly in
the face ofthe Board’s previous Order, dated February
5,
2004.
II.
LEGAL
STANDARD
FOR A MOTION
TO DISMISS
A
complaint must advise respondents ofthe extent and nature ofthe alleged violations to
reasonably allow preparation of a defense.
35 Ill. Adm. Code
103.204(c)(2); see
also People v.
Bentronics Corp., PCB 97-20,
1996 WL 633410, at *6 (Oct.
17,
1996).
A complaint “need not
present evidence on every essential element in pleadings.” j~ Rather, a complaint need only
allege ultimate facts necessaryto state a cause of action and inform the respondent ofwhat it
must defend against.
People v. Old World Ind., PCB 97-168, 1998 WL 660355,
at *3 (Sept.
17,
1998).
“For purposes of ruling on a motion to dismiss, all well pled facts contained in the
pleadings must be taken as true and all inferences from them must be drawn in
favor of the
nonmovant.”
People v.
Skokie Vail. Asphalt, PCB 96-98, 2003 WL 21405849, at *6 (June 5,
2
2003).
“A complaint
should not be dismissed for failure to state a claim unless it clearly appears
that no set of facts could be proven under the pleadings that would entitle complainant to relief.”
~
A complaint should survive a motion to dismiss where the Board
can foresee a set facts upon
which a complainant can recover.
$~
Miehie v. .Chicago Br. and Iron Co., PCB 93-150,
1993
WL 468414, at
*5
(Nov. 4,
1993).
III.
TOWN
& COUNTRY’S
MOTION TO DISMISS SHOULD
BE DENIED BECAUSE
IT DIRECTLY CONTRADICTS THE BOARD’S PREVIOUS FINDING
AND
BECAUSE
THE
PEOPLE’S COMPLAINT MEETS THE
CONTENT REQUIREMENTS
A.
Town & Country’s Motion Contradicts
the Board’s Previous Finding that the
People’s Complaint Meets the Content Requirements
On February
5,
2004, the Board entered an Order making
aprimafacie
finding that the
People’s Complaint meets the content requirements under Board Procedural Rules
103.204(c)
and (f) and
103.2 12(c).
(Order at 1.)
Thereafter, Town &
Country moved to dismiss the
Complaint on the ground that it fails to
meet the content requirements under Rule
103.204(c).
(Motion at 2-3).
Town & Country’s Motion does not rebut the Board’s finding under the same
procedural rule, much less acknowledge the Board’s finding.
Because the Board previously
found that the People’s Complaint meets the content requirements, the Motion should be denied.
B.
The People’s Complaint
Meets
the Content Requirements
The Board’s
primafacie
finding that the People’s Complaint meets the content
requirements is
correct.
The Complaint clearly advises Town & Country of the extent and nature
ofthe alleged violations to reasonably allow preparation of a defense.
However, instead of
taking all well pled facts contained in the Complaint as true and drawing all inferences from
them in favor ofthe People, Town & Country ignores well-pled facts and inferences from them.
Moreover, Town & Country invents case elements and then argues that the People failed to plead
3
facts in support thereof.
1.
Count I ofthe People’s Complaint Clearly States a Cause ofAction for Causing,
Threatening or Allowing Water Pollution
Count I of the People’s Complaint clearly states a cause ofaction for causing, threatening
or allowing water pollution in violation of Section
12(a) ofthe Act
(415 ILCS
5/12(a)
(2002)).
Through a set ofexplicit and unambiguous facts common to
all counts ofthe Complaint, Count I
alleges that Town &
Country owns and/or operates an expansive construction site known as
Liberty Lakes, which is located in an environmentally sensitive area along Gilmer Road just west
ofFairfield Road in Wauconda, Lake County, Illinois (“site”).
(Complaint,
¶~J
3-5.)
Count I
alleges that, as ofSeptember 24, 2002, Town & Country had disturbed approximately 400 acres
ofland at Liberty Lakes and excavated trenches for hundreds of feet of sewer and public water
supply lines without an NPDES
storm waterpermit, sewer permit or public water supply permit
and without submitting plans and specifications for a public water supply.
(Complaint,
¶IJ
6-8,
10 and
11.)
Count I alleges that Town &
Country had inadequate erosion and silt control
measures at Liberty Lakes on
September 24, 2002, and based on information provided by Town
& Country, had pumped storm water from on-site catch basins into an adjacent wetland area.
(Complaint,
¶~T
7 and 9.)
Count I alleges that silt is
a contaminant that will or is likely to
create a
nuisance or render waters ofthe State harmful or detrimental or injurious to public
health, safety
or welfare, or domestic,
commercial, industrial, agricultural, recreational, or other legitimate
uses, or to livestock, wild animals,
birds, fish, or other aquatic life.
(Complaint,
¶~J
18 and 19.)
Further, Count I alleges
that, based on these facts, Town & Country caused, threatened or
allowed water pollution in Section
12(a) ofthe Act.
(Complaint, ¶~j
22-24.)
Count I also pleads
facts above and beyond those recited above, restates Section 12(a) ofthe Act and relevant
4
definitions in their entirety, and contains a prayer for relief.
Despite all of this, Town & Country claims that Paragraphs 6 through 9 of Count I are
“absent ofany facts specifying the extent,
duration, nature or strength ofany purported
discharges or emissions by Town & Country.”
(Motion at 3.)
However, Town & Country
simply ignores the factual allegations and inferences
in these paragraphs.
Further, Town &
Country levels its criticism at fourparagraphs of Count I, while ignoring 20
other paragraphs, not
including the prayer for relief.
When considered in its
entirety, Count I contains specific
allegations regarding the extent,
duration, and nature and strength of actual or threatened
discharges.
Even if one or more the facts alleged in Count I were omitted, that
is not a ground
for
a motion to dismiss because a
complaint need not present evidence on every essential
element.
Bentronics Corp.,
PCB 97-20, 1996 WL 633410, at *6.
Town & Country
also claims that Count I fails to
explain “whether any claimed
harm/damage was permanent or even the nature of alleged damages.”
(Motion at 4.)
Town &
Country has invented this case element.
Based on its plain language, Section
12(a)
does not
require a showing ofpermanent harm or damage.
The People are not aware ofany precedent for
adding such an element to the case, nor has Town & Country provided any precedent.
Also,
Town &
Country simply ignores that Section
12(a) refers to persons
“threatening”
the discharge
ofa contaminant to waters.
The People (and the Board) are permitted to take action against
threatened water pollution, which are circumstances not yet amounting to
actual waterpollution.
The Board has found violations based upon the threat ofpollution.
See,
e.g.,
Wasteland, Inc. v.
,
456
N.E.2d 964, 97 1-72 (Ill. App. 3d Dist.
1983).
The well-pled facts and inferences
from them in Count I of the Complaint clearly satisfy
the Board’s content requirements by stating a cause ofaction and informing Town &
Country of
5
what it must defend against.
Town & Country’s Motion ignores these well pled facts and
inferences,
and invents a case element regarding permanent harm.
Because Count I meets the
content requirements, Town & Country’s Motion as to Count I should be denied.
2.
Count II ofthe People’s Complaint Clearly States a Cause ofAction for Causing
or Allowing the Construction ofa Sewer Without a Permit
Count II ofthe People’s Complaint clearly states a cause ofaction for causing or allowing
the construction of a sewer without a permit in violation ofSection
12(c) of the Act (415 ILCS
5/12(c)
(2002)) and Section 309.202(a) ofthe Board’s Water Pollution Regulations (35 Ill.
Adm.
Code 309.202(a)).
Indeed, Count II contains the same explicit and unambiguous factual
allegations as Count I, restates relevant statutory and regulatory provisions, and contains a prayer
for relief.
Without regard to the well pled facts and inferences from them, Town &
Country
argues that the People failed to “specifically explain how or why the failure to secure a
construction permit violated Section
12(c) ofthe Act
or caused any harm to the property in the
development.”
(Motion at 4-5.)
However, this is not an essential element for a finding that
Town & Country violated the sewer construction permit requirements.
Again, Town & Country
has invented this pleading requirement.
In relevant part, Section
12(c) ofthe Act and Section 309.202(a) ofthe Board’s Water
Pollution Regulations prohibit a person from causing or allowing the construction or installation
ofa sewer without a construction permit issued by the Illinois EPA.
Town & Country’s
construction or installation ofhundreds offeet of sewer pipes at the site without a sewer permit
from Illinois EPA as alleged in Count II is a violation in
and of itself.
It is not necessary to
inquire “how” and “why” Town &
Country constructed without this
permit in order to conclude
that itwas not obtained in a timely manner.
6
Town & Country’s
argument is an indication that it does not understand the
programmatic significance ofthe State’s permitting programs.
A violation ofthe permitting
requirements “goes
directly to the heart of the State’s enforcement program and ability to protect
against environmental damage.”
Std.
Scrap Metal. Co.
v. PCB, 491 N.E.2d 1251,
1256 (Ill.
App.
1st Dist.
1986).
“The permit program is a method through which the
State ofIllinois can control
emitters ofcontaminants into the environment,
as well as emissions that may result in the
presence ofcontaminants in the environment.”
~
By constructing without a sewer permit (or
any other permit~from Illinois EPA, Town &
Country took away the State’s ability to monitor
construction and created the opportunity for water pollution.
Therefore, the simple fact that
Town & Country
constructed a sewer without a sewer permit is a serious violation.
Town &
Country’s argument that Count II fails to satisfy the content requirements is
based on a case element that Town & Country has invented.
Because the People are not required
to specifically explain how or why Town & Country failed to
obtain the sewer permit in order to
state a cause ofaction for causing or allowing the construction ofa sewer without a permit, Town
&
Country’s Motion should be denied.
3.
Counts III through V of the People’s Complaint Also Clearly State Causes of
Action for Causing, Threatening or Allowing the Discharge ofContaminants
Without an NPDES
Storm Water Discharge Permit, Failing
to Submit
Plans
and
Specifications for a Public Water Supply Before Construction,
and Construction
or Installation of a Public Water Supply Without a Permit
Counts
III through V ofthe People’s Complaint also clearly state causes ofaction for
causing, threatening or allowing the discharge ofcontaminants without an NPDES storm water
discharge permit in violation ofSection 12(f) ofthe Act (415 ILCS
5/12(f)
(2002)) and Section
309.102(a) ofthe Board’s Water Pollution Regulations
(35
Ill.
Adm. Code
309.102(a)), failing to
submit plans and specifications for a public water supply before construction in violation of
7
Section
15(a) ofthe Act (415 ILCS
5/15(a)
(2002)), and construction or installation ofa public
water supply without a permit in violation ofSection
18(a) ofthe Act (415 ILCS
5/18(a) (2002))
and Sections 602.101(a) and 652.101(a) of the Board’s and Illinois EPA’s Public Water Supply
Regulations, respectively
(35
Ill.
Adm.
Code 602.101(a) and
652.101(a)).
These counts
contain the same explicit and unambiguous factual allegations as Counts I
and II, restate all relevant statutory and regulatory provisions, and contain prayers for relief.
Without regard to the well pled facts and inferences from them, Town &
Country summarily
argues that Counts
III and V fail to specify the location, extent, duration or nature of the
discharges.
(Motion at
5.)
Town & Country again simply ignores the well pled facts and
inferences from them.
Town & Country also argues that Counts III and IV essentially fail to
specify the manner in which construction without
an NPDES storm water and without submitting
plans and
specifications for a public water supply, respectively, caused violations of the Act.
(j~4~)
On this point, Town &
Country has again invented a case element.
Its construction without
obtaining the permit or submitting plans and specifications resulted in the violations without
specifying the so-called manner ofits
violations.
Because Counts III through V meet the content
requirements, the Motion should be denied.
IV.
CONCLUSION
In conclusion, the Board correctly found that the People’s Complaint meets the content
requirements.
The Complaint states a cause ofaction on all counts such that Town & Country is
clearly advised ofthe extent and nature ofthe alleged violations to reasonably allow preparation
of a defense.
Given even fewer facts than those alleged, it would be easy to foresee a set facts
upon which the People can recover such that the Complaint should survive Town & Country’s
Motion.
8
However, Town &
Country does not take all well pled facts as true and draw all
inferences in favor ofthe People.
Town & Country also does not show that no set offacts would
entitle the People to relief.
Instead, Town & Country ignores
facts, invents pleading
requirements, and then asks the Board to disregard established
content requirements in order to
grant its Motion.
Because the Complaint meets the content requirements, Town & Country’s
Motion
should be denied.
WHEREFORE, the People request that the Board deny Town & Country’s Motion.
Respectfully sub~nitted,
PEOPLE OF THE
STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State ofIllinois
BY:
___________________________
MICHAEL C. PARTEE
Assistant Attorney General
F
Environmental BureaulNorth
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel: (312)814-2069
Fax: (312)814-2347
9