1. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      2. NOTICE OF FILING
      3. CERTIFICATE OF SERVICE
      4. SERVICE LIST
      5. Count IV: DUPAGE DEPARTNMENT OF TRANSPORTATION
      6. AFFIRMATIVE DEFENSES
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
DISTRICT
Complainant
v.
VILLAGE OF HINSDALE, METROPOLITAN
WATER RECLAMATION DISTRICT OF
GREATAER CHICAGO, ILLINOIS
DEPAATMENT OF TU.NSPORTATION,
DUPAGE COUNTY
Respondents.
)
)
PCB 06-141
NOTICE OF FILING
To:
See attached service list.
PLEASE TAKE NOTICE that on
the 15th day of August, 2006, the enclosed
ANSWER
AND
AFFIRMATIVE
COUNTY, was filed with the Office
Randolph Street, Suite 11
-500,
Assistant State's
~ttornes
CERTIFICATE OF SERVICE
The undersigned being first duly sworn upon oath states that I served this notice
on the
16'~
day of August, 2006, by mailing a copy to each person to whom it is directed
and depositing the same in the U.S. Mail at
Wheaton, Illinois with the proper postage
prepaid.
Subscribed and sworn to before me this
I/
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 15, 2006
SERVICE LIST
Flagg Creek Water Reclamation District v. Village of Hinsdale, et al.
Richard J. Kissel
Roy M. Harsch
John A. Simon
Gardner Carton
&
Douglas, LLP
191 N. Wacker Dr., Suite 3700
Chicago, IL 60606
Bradley
Balloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph St., Suite 11
-500
Chicago, IL 60601
Richard Christopher
Special Assistant Attorney General
Illinois Department of Transportation
300 W. Adams,
2nd Floor
Chicago, IL 60606
Fredereick M. Feldman
Lisa
Luhrs Draper
Metropolitan Water Reclamation District of Greater Chicago
100 E. Erie Street
Chicago, IL 6061 1
-3154
Kenneth M. Florey
Robbins Schwartz Nicholas Lifton
&
Taylor, LTD
20 N. Clark St., Suite 900
Chicago, IL 60602
Mark E.
Burland
Holland
&
Knight, LLC
131 S.
Dearborn Street, 3oth Floor
Chicago, IL 60603
William D. Seith
Total Environmental Solutions, P.C.
635 Butterfield Road, Suite 240
Oakbrook Terrace, IL 601 01
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 15, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
DISTRICT
Complainant
VILLAGE OF HINSDALE, METROPOLITAN
WATER RECLAMATION DISTRICT OF
GIZEATAER CKICAGG, ILLINGI
DEPARTMENT OF TRANSPORTATION,
DUPAGE COUNTY
Respondents.
j
1
1
1
1
PCB 06-141
1
)
Answer and Affirmative Defenses
Of Respondent,
DuPa~e County
1.
DuPage County admits that this action has been filed by the Flagg Creek Water
Reclamation District (FCWRD). The remainder of this paragraph is not fact but legal
conclusion which DuPage neither admits nor denies.
2.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph
2 and therefore denies same.
3.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph
3
and therefore denies same.
4.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph
4 and therefore denies same.
5.
DuPage admits the allegations contained in paragraph 5.
6.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph
6
and therefore denies same.
7.
DuPage denies that it contributes excess flow to the FCWRD at any time. As to
the actions of other respondents, DuPage lacks sufficient knowledge to either admit or
deny the allegations in Paragraph
7.
8.
DuPage denies the allegations of paragraph 8.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 15, 2006
9.
DuPage lacks sufficient knowledge to either
adinit or deny the allegations in
Paragraph 9 and therefore denies same.
10.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 10 and therefore denies same.
1
1.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph
11 and therefore denies same.
12.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 12 and therefore denies same.
13.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 13 and therefore denies same.
14.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 14 and therefore denies same.
15.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 15 and therefore denies same.
16.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 16
and therefore denies same.
17.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 17 and therefore denies same.
18.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 18 and therefore denies same.
19.
DuPage denies the allegation of paragraph 19 as they pertain to County of
DuPage. DuPage lacks sufficient knowledge to either admit or deny the remainder of the
allegations contained in Paragraph 19.
20.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 20 and therefore denies same.
Count IV: DUPAGE DEPARTNMENT OF TRANSPORTATION
77.
DuPage admits that it has jurisdiction over portions of
55th Street within DuPage
County and is responsible for operation, repair and maintenance for those sections under
its jurisdiction. To the
extent any allegation is inconsistent with this statement, DuPage
denies same.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 15, 2006
78.
DuPage admits that it has performed construction work on
55th Street west of
County Line Road throughout the years, adding additional lanes at various times.
DuPage
furher admits that 55th Street went from two lanes to 4lanes in various sections
but lacks sufficient knowledge to either admit or deny the remaining allegations in
paragraph 78 and therefore denies same.
79.
DuPage admits that it installed storm sewers on some sections of
55'" street and
further admits that it has not installed storm sewers to accept the runoff from the entire
length of 55
" Street.
80.
DuPage admits that along certain sections of
55th Street stormwater enters the
FCWRD's system in the same manner as it has done so historically and denies that by its
doing so, DuPage has breached any duty. DuPage denies the remainder of the allegations
of Paragraph 80.
8
1.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 81 and therefore denies same.
82.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 82 and therefore denies same.
83.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 83 and therefore denies same.
84.
DuPage denies that it is causing or contributing to or causing any unauthorized
CSO's within the FCWRD in violation of any ordinance or statute to which it is subject.
DuPage denies the remainder of the allegations in paragraph
84.
85.
DuPage denies that it is causing or contributing to or causing any unauthorized
CSO's within the FCWRD in violation of any ordinance or statute to which it is subject.
DuPage denies the remainder of the allegations in paragraph 85.
86.
DuPage denies the allegations contained in paragraph 86.
87.
DuPage lacks sufficient knowledge to either admit or deny the allegations in
Paragraph 91.
AFFIRMATIVE DEFENSES
1.
The right to drain water from County Highway is a property right which may only
be adjudicated in a court of law.
2.
During its construction on
55th Street, DuPage sought and received input as to
construction means and methods from the Hinsdale Sanitary District, predecessor in
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 15, 2006
interest to the FCWRD. The input and requirements imposed by the Hinsdale Sanitary
District were complied with in good faith by DuPage during the construction. FCWRD is
now equitably estopped from asserting that the restrictions imposed by its predecessor
were inadequate.
3
At all times prior to and during construction of
55" Street, the Hinsdale Sanitary
District, predecessor in interest to the FCWRD was aware and had input into the plans
for the improvement, including storm water drainage, and no objection to the
improvements as planned and constructed was made. FCWRD is now barred by the
doctrine of laches from asserting any claim resulting from that construction.
4.
FCWRD and its predecessor in interest failed to mitigate any damage resulting
from the actions of
DuPage.
DUPAGE COUNTY
JOSEPH E.
BIRKETT
DUPAGE STATE'S ATTORNEY
BY: Robert E. Douglas
ASSISTANT STATE'S ATTORNEY
503N. County Farm Road
Wheaton, IL 60187
Phone: 630
-407-8305
Fax: 630
-407-8201
Robert.Dou~las~duoaaeco.org
Dated: August 9,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 15, 2006

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