BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
THOMAS P. MATHEWS, an individual,
Respondent.
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No. PCB 07-133
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(Enforcement-Water)
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NOTICE OF FILING
(Electronic Filing)
TO:
Katherine M. Hausrath
Assistant Attorney General
Environmental Bureau
69
W. Washington St, 18
th
FI.
Chicago, IL 60602
PLEASE
TAKE NOTICE that today I have electronically filed with the Office of the
Clerk
of the Pollution Control Board the Respondent's Appearance and Answer to the
Complaint, copies
of which are attached and herewith served upon you.
Campion, Curran, Dunlop
&
Lamb, P.c.
Attorneys for Respondent
8600 U.S. Highway 14, Suite 201
Crystal Lake, IL 60012
(815) 459-8440
Fax: (815) 455-8134
Electronic Filing, Received, Clerk's Office, August 31, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
ofthe State of Illinois,
Complainant,
v.
THOMAS P. MATHEWS, an individual,
Respondent.
)
)
)
)
)
)
)
No. PCB 07-133
)
(Enforcement-Water)
)
)
)
APPEARANCE
The undersigned, individually and on
behalf of the firm of Campion, Curran, Dunlop
&
Llunb, P.C., enters an appearance on behalf of the Respondent, THOMAS P. MATHEWS.
Campion, Curran, Dunlop
&
Lamb, P.C.
Attorneys for Respondent
8600 U.S. Highway 14, Suite 201
Crystal Lake, IL 60012
(815) 459-8440
Fax: (815) 455-8134
Electronic Filing, Received, Clerk's Office, August 31, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
ofthe State of Illinois,
Complainant,
v.
THOMAS P. MATHEWS, an individual,
Respondent.
)
)
)
)
)
)
)
No. PCB 07-133
)
(Enforcement-Water)
)
)
)
ANSWER TO COMPLAINT
Respondent, THOMAS P. MATHEWS, by his attorneys, CAMPION, CURRAN,
DUNLOP
&
LAMB, P.C., answers the Complaint as follows:
COUNT I
WATER POLLUTION
1.
Respondent does not have sufficient information on which to answer the
allegations contained in paragraph
1, and therefore, neither admits nor denies same, but demands
strict proof thereof.
2.
Respondent does not have sufficient information on which to answer the
allegations contained in paragraph
2, and therefore, neither admits nor denies same, but demands
strict proof thereof.
3.
Admits.
4.
In answer to paragraph 4, Respondent states that the Respondent Mathews is the
beneficial owner of lands, some of which are located at the intersection of Westmoor Drive and
East Oakwood Dr. in Wonder Lake, Illinois. Respondent denies that his lands border
an
unnamed stream, but rather that some ofhis lands border a ditch.
In
further answer to paragraph
Electronic Filing, Received, Clerk's Office, August 31, 2007
4, Respondent states that the Complainant fails to adequately identify the site for the Respondent
to accurately respond for purposes of this allegation. The Respondent either owns or controls
land which
is north, east, west and south of the intersection of Westmoor Dr. and East Oakwood
Dr. in Wonder Lake, McHenry County, Illinois.
5.
Respondent is without sufficient knowledge with which to form a belief as to
whether the Illinois EPA or the McHenry County Soil and Water Conservation District inspected
the site on April 22, 2005, and therefore, neither admits nor denies same, but demands strict
proofthereof.
6.
Respondent denies the allegations of paragraph 6.
7.
Respondent is without sufficient knowledge with which to form a belief as to
whether the Illinois EPA inspected the site on April 27, 2005, and therefore, neither admits nor
denies same, but demands strict proof thereof.
8.
Respondent denies the allegations of paragraph 8.
9.
In answer to paragraph 9, Respondent again objects to the lack of a clear
definition
of the site. See response to paragraph 4. In further answer, the Respondent states that
he was on his property at times with representatives
ofthe McHenry County Soil and Water
Conservation District, but does not recall ever being on his property when representatives
of the
Illinois EPA were there.
10.
Respondent is without sufficient knowledge with which to form a belief as to
whether the Illinois EPA inspected the site on May 5, 2005, and therefore, neither admits nor
denies same, but demands strict proof thereof.
II.
Respondent denies the allegations of paragraph II.
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Electronic Filing, Received, Clerk's Office, August 31, 2007
12.
Respondent is without sufficient knowledge with which to fonn a belief as to
whether the Illinois EPA inspected the site on July 28, 2005, and therefore, neither admits nor
denies same, but demands strict proofthereof.
13.
Respondent denies the allegations of paragraph 13.
14.
Respondent is without sufficient knowledge with which to fonn a belief as to
whether the Illinois EPA or the McHenry County Soil and Water Conservation District inspected
the site on August
5, 2005, and therefore, neither admits nor denies same, but demands strict
proof thereof.
15.
Respondent denies the allegations ofparagraph 15.
16.
Respondent is without sufficient knowledge with which to fonn a belief as to
whether the Illinois EPA or the McHenry County Soil and Water Conservation District inspected
the site on August 30, 2006, and therefore, neither admits nor denies same, but demands strict
proof thereof.
17.
In
answer to paragraph 17, Respondent states that at the request ofthe Village of
Wonder Lake, silt fencing was placed on portions of his property. As to any remaining
allegations in paragraph 17, Respondent denies same.
18.
Respondent is without sufficient knowledge with which to fonn a belief as to
whether the Illinois EPA inspected the site on May 11, 2007, and therefore, neither admits nor
denies same, but demands strict proofthereof.
19.
In answer to paragraph 19, Respondent again states that because the site is not
accurately identified, he cannot properly respond to this allegation. Notwithstanding this,
Respondent states that none
of the properties that he owned or controlled in that area was
-3-
Electronic Filing, Received, Clerk's Office, August 31, 2007
unstabilized.
20.
The statute speaks for itself
21.
The statute speaks for itself.
22.
Admit Respondent is a person.
23.
The statute speaks for itself, but denies that any action by Respondent resulted in a
contaminant entering the water stream.
24.
Respondent denies the allegations of paragraph 24..
25.
The statute speaks for itself.
26.
Respondent denies the allegations of paragraph 26.
27.
The statute speaks for itself.
28.
Respondent denies the allegations of paragraph 28.
29.
Respondent denies the allegations of paragraph 29.
30.
Respondent denies the allegations of paragraph 30.
WHEREFORE,
Respondent, THOMAS P. MATHEWS, respectfully requests that the
Board enter
an Order:
A.
Dismissing the Complaint with prejudice; and
B.
Ordering Complainant to pay Defendant's costs and attorney's fees herein.
COUNT
II
CREATING A WATER POLLUTION HAZARD
1-26. Respondent repeats and realleges paragraphs 1-26 of Count I as and for
Respondent's answers to paragraphs 1-26 of this Count II.
27.
The statute speaks for itself.
-4-
Electronic Filing, Received, Clerk's Office, August 31, 2007
28.
Respondent denies the allegations ofparagraph 28.
29.
Respondent denies the allegations ofparagraph 29.
WHEREFORE,
Respondent, THOMAS P. MATHEWS, respectfully requests that the
Board enter an Order:
A.
Dismissing the Complaint with prejudice; and
B.
Ordering Complainant to pay Defendant'scosts and attorney's fees herein.
AFFIRMATIVE DEFENSES
First Affirmative Defense-No Contamination
1.
Complainant alleges that "soil and stone" were located on the site near a stream.
2.
All lands adjoining all streams and ditches leading to the lake of Wonder Lake
contain "soil and stone."
3.
"Soil and stone" are not contaminants, but occur in nature.
4.
The Complaint does not reference any actual water pollution, nor does it allege
that Respondent placed any "soil and stone" in the alleged small stream adjoining the site.
5.
The Complainant has failed to state a claim for water pollution or a water
pollution hazard, and the case should be dismissed.
WHEREFORE,
Respondent, THOMAS P. MATHEWS, prays that the Board enter an
Order dismissing the Complaint, grant Respondent his attorney fees and costs herein, and grant
such other a further relief
as the Board deems just.
Second Affirmative Defense-Act of God
I.
Complainant alleges that stonn water could run off the site into the stream
adjoining the site. (Complaint
at 6, 8, II.)
-5-
Electronic Filing, Received, Clerk's Office, August 31, 2007
2.
Stonn waters are an act of God, and not within the control of Respondent.
3.
No allegation is made indicating that Respondent had altered the site in a way that
channeled
or forced water or any "stone or soil" into any stream, any stonn ditch, or Wonder
Lake.
4.
The Complainant has failed to state a claim for water pollution or a water
pollution hazard, and the case should be dismissed.
WHEREFORE,
Respondent, THOMAS P. MATHEWS, prays that the Board enter an
Order dismissing the Complaint, grant Respondent his attorney fees and costs herein, and grant
such other a further relief as the Board deems just.
Third Affirmative Defense-Third Party Intervention
1.
Complainant alleges that the placement of "soil and stone" on the site, should it be
hit
by stonns, could result in "silt-laden storm water" running off the site into the adjacent
stream.
2.
The Complaint does not allege that this site actually caused pollution.
3.
The Complaint does not allege any measurement of "silt-laden stonn water" had
actually entered any ditch or stream or Wonder Lake.
4.
Wonder Lake has a long history ofbeing silt-laden, through the erosion of the
shoreline over the past century.
5.
More than 100 acres of the 830 acres within Wonder Lake are inaccessible
because they are shallow from sediment running into the lake from Nippersink Creek.
6.
An
island, referred to by the locals as Goose Island, has sprung up the lake'swest
bay as a result of sedimentation.
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Electronic Filing, Received, Clerk's Office, August 31, 2007
7.
None of these natural occurrences of sedimentation of Wonder Lake are
attributable
to the Respondent.
8.
For many years preceding the alleged "soil and stone" piles on the site in question,
the Master Property Owners Association for Wonder Lake has been attempting to secure $13
million in funding
to dredge the lake, which is referred to as "Wonder Puddle."
9.
The Master Property Owners Association estimates that 2.5 million yards of mud
needs
to be removed from the lake bottom.
10.
The lake has a long-standing sedimentation problem which calIDot be causally
related
to the Respondent in this matter so the Complainant is unable to meet its burden of proof
and the case should be dismissed.
WHEREFORE,
Respondent, THOMAS P. MATHEWS, prays that the Board enter an
Order dismissing the Complaint, grant Respondent his attorney fees and costs herein, and grant
such other a further relief as the Board deems just.
Fourth Affirmative Defense-Mitigation
1.
Complainant alleges that the Respondent installed silt fencing on the site, graded
it, and it has significant weed cover.
2.
If, in fact, the allegations contained in the Complaint are true, then Respondent
has taken corrective action on the site to mitigate the possibility of the soil and stone occurring in
nature being carried into the adjoining ulli1amed creek or ditch
by an act of God.
3.
The issues complained of by Complainant have thus been ameliorated by
Respondent and there is no evidence of past water pollution and no probability of future water
pollution, so the case should be dismissed.
-7-
Electronic Filing, Received, Clerk's Office, August 31, 2007
WHEREFORE,
Respondent, THOMAS P. MATHEWS, prays that the Board enter an
Order dismissing the Complaint, grant Respondent his attorney fees and costs herein, and grant
such other a further relief as the Board deems just.
Fifth Affirmative Defense-Laches
1.
Complainant alleges that it first new of the "soil and stone" on April 22, 2005.
2.
The Illinois EPA or the McHenry County Soil and Water Conservation District, or
both, allegedly reinspected the site on April 27, 2005, May 5,2005, July 28,2005, and August
5,
2005.
3.
During that period of time, the Respondent did install silt fencing on property that
he owns and controls and he graded portions
of said property.
4.
The Illinois EPA did not return to the alleged site for more than a year, next
inspecting the property on August 30, 2006.
5.
The Illinois EPA did not return again until May 11, 2007.
6.
The Complaint alleges that from April 22, 2005 through May 11, 2007, the soil
and stone was deposited on the site in manner that allowed material and silt-laden storm water to
flow into the stream that leads
to Wonder Lake, altering or threatening to alter the physical,
chemical, thermal or biological properties
of the stream.
7-13. Respondent readopts and realleged paragraphs 4-10
of the Third Affirmative
Defense
as and for paragraphs 7-13 of this Fifth Affirmative Defense as if fully set forth herein.
14.
The Complaint in this matter was not brought until June 13,2007.
15.
Because of the lengthy time between the first inspection of the site and the filing
of this action, Respondent cannot prove that the "soil and stone" on Respondent'sproperty has
-8-
Electronic Filing, Received, Clerk's Office, August 31, 2007
not and would not have caused water pollution or a water pollution hazard.
16.
Because the site has been mitigated, silt fencing installed, and grading completed,
the Respondent cannot prove that the "soil and stone" on Respondent'sproperty has not and
would not have caused water pollution or a water pollution hazard.
17.
The Complainant never requested testing to be completed ascertaining that there
was no impact
by the site and the Respondent complied with all reasonable instructions to protect
the site, such that the Respondent is now impaired in defending this action through the long
delays
by Complainant.
18.
Complainant should be barred by the doctrine of laches from proceeding in this
matter.
WHEREFORE,
Respondent, THOMAS P. MATHEWS, prays that the Board enter an
Order dismissing the Complaint, grant Respondent his attorney fees and costs herein, and grant
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her relief as the Board deems just.
DATED:
--J-..,;J:-JL-JCfl,.L-/---
CAMPION, CURRAN, DUNLOP
&
LAMB, P.C.,
Attorneys for Res ondent
By:
CAMPION, CURRAN, DUNLOP
&
LAMB, P.
8600 U.S. Highway 14, Suite 201
Crystal Lake, lL 60012
(815) 459-8440
-9-
Electronic Filing, Received, Clerk's Office, August 31, 2007
CERTIFICATE OF SERVICE
The undersigned, a non-attorney, does certify that she caused to be mailed this
31 st day of
August, 2007, by U.S. First Class Mail, the foregoing Notice of Filing and Certificate of Service,
as well as the Appearance and Answer to Complaint, on the party named
on the Notice, by
deposing same in a postage prepaid envelope with the U.S. Postal Service in Crystal Lake,
Illinois, on or before 5 p.m.
Mary
~a)J~
.. 00
Subscribed and sworn to before me this
31 st day of August, 2007.
~"b a~ /l1·lltv£~
Notary Public
"OFFICIAL SEAL"
DIANE M. MCNAMER
Notary Public, State 01 Illinois
My Commission Expires
0110812011
•. ,
.F:l'
Electronic Filing, Received, Clerk's Office, August 31, 2007
