BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FLAGG CREEK WATER

)

RECLAMATION DISTRICT,

)

)

Complainant,

)

)

vs.

)

PCB 06-141

)

VILLAGE OF HINSDALE, METROPOLITAN

)

WATER RECLAMATION DISTRICT OF

)

GREATER CHICAGO, ILLINOIS

)

DEPARTMENT OF TRANSPORTATION,

)

DUPAGE COUNTY,

)

)

Respondents.

)

NOTICE OF FILING

TO:

Persons on the attached service list

PLEASE TAKE NOTICE that I have filed today with the Office of the Clerk of the Illinois

Pollution Control Board, 100 W. Randolph St., Suite 11-500, Chicago, IL, the ANSWER AND

AFFIRMATIVE DEFENSES OF RESPONDENT, VILLAGE OF HINSDALE TO

COMPLAINANT’S AMENDED COMPLAINT, a copy of which is herewith served upon you.

Respectfully Submitted,

_______________________

William D. Seith

CERTIFICATE OF SERVICE

I, William D. Seith, an attorney, certify that I sent a copy of the foregoing ANSWER AND

AFFIRMATIVE DEFENSES OF RESPONDENT, VILLAGE OF HINSDALE TO

COMPLAINANT’S AMENDED COMPLAINT to the parties on the attached Service List on this

28

th

of August, 2006.

_______________________

William D. Seith

William D. Seith

Total Environmental Solutions, P.C.

635 Butterfield Rd., Suite 240

Oakbrook Terrace, IL 60181

Main: 630-620-9100

Fax: 630-620-9108

wdseith@tespc.com

Dated: August 28, 2006

THIS FILING IS SUBMITTED ON RECYCLED PAPER

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

SERVICE LIST

Flagg Creek Water Reclamation District vs. Village of Hindale, et al.

For the Flagg Creek Water Reclamation

District:

Richard J. Kissel

Roy M. Harsch

John A. Simon

Gardner Carton & Douglas, LLP

191 N. Wacker Dr., Suite 3700

Chicago, IL 60606

rkissel@gcd.com

rharsch@gcd.com

jsimon@gcd.dom

For the Illinois Department of

Transportation:

Richard Christopher

Special Assistant Attorney General

Illinois Department of Transportation

300 W. Adams, 2

nd

Floor

Chicago, IL 60606

christopherra@dot.il.gov

For the DuPage County, Division of

Transportation:

Robert E. Douglas

Assistant State’s Attorney

DuPage County State’s Attorney’s Office

505 N. County Farm Rd.

Wheaton, IL 60187

630-407-8205

For the Metropolitan Water Reclamation

District of Greater Chicago:

Frederick M. Feldman

Lisa Luhrs Draper

Metropolitan Water Reclamation District of

Greater Chicago

100 E. Erie St.

Chicago, IL 60611-3154

312-751-6576

For the Illinois Pollution Control Board:

Bradley Halloran

Hearing Officer

Illinois Pollution Control Board

100 W. Randolph St., Suite 11-500

Chicago, IL 60601

312-814-8917

hallorab@ipcb.state.il.us

Co-Counsel For the Village of Hinsdale:

Kenneth M. Florey

Robbins Schwartz Nicholas Lifton &

Taylor, Ltd.

20 N. Clark St., Suite 900

Chicago, IL 60602

312-332-7760

kflorey@rsnlt.com

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FLAGG CREEK WATER RECLAMATION

)

DISTRICT,

)

)

Complainant,

)

)

vs.

)

PCB 06-141

)

VILLAGE OF HINSDALE, METROPOLITAN

)

WATER RECLAMATION DISTRICT OF

)

GREATER CHICAGO, ILLINOIS

)

DEPARTMENT OF TRANSPORTATION,

)

DUPAGE COUNTY,

)

)

Respondents.

)

Answer and Affirmative Defenses

of Respondent, Village of Hinsdale to

Jurisdiction

1.

Complainant Flagg Creek Water Reclamation District (FCWRD), by and

through its counsel Gardner Carton & Douglas LLP, brings this complaint before the

Illinois Pollution Control Board (“Board”) pursuant to Section 31(d)(1) of the Illinois

Environmental Protection Act (“Act”), 415 ILCS 5/31(d), which allows enforcement

proceedings to be initiated against any person allegedly violating the Act, any rule or

regulation adopted under the Act, any permit or term or condition of a permit, or any

Board order.

Answer:

The Village of Hinsdale (“Hinsdale”) admits that this action has been filed

by FCWRD. The remainder of this paragraph submits a legal conclusion which

Hinsdale neither admits nor denies. Hinsdale submits that Section 31 of the Act speaks

for itself.

The Parties

2.

FCWRD, formerly known as the Hinsdale Sanitary District, is a municipal

government agency organized in 1926 under the Sanitary District Act of 1917, 70 ILCS

2405,

et seq

. FCWRD is responsible for wastewater treatment within a designated

service area of approximately 24 square miles, which includes the Village of Hinsdale,

the Village of Clarendon Hills, and the Village of Oak Brook, as well as portions of Burr

Ridge, Oak Brook Terrace, Westmont, Villa Park, Lombard, Darien and Willowbrook.

1

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

Answer:

Hinsdale admits that FCWRD serves Hinsdale. Hinsdale lacks knowledge

sufficient to form a belief as to the remaining allegations contained in paragraph 2.

3.

The Village of Hinsdale (Hinsdale) is a municipality governed by the Illinois

Municipal Code, 65 ILCS 5/1-1-1,

et seq.

Hinsdale owns and operates a combined

sewer system that conveys wastewater to both the Metropolitan Water Reclamation

District of Greater Chicago (MWRD) and the FCWRD.

Answer:

Hinsdale admits that it is a municipality and that it owns and operates a

sewer system. Hinsdale admits that a portion of its system is a combined sewer

system. Hinsdale also admits that a portion of its system conveys wastewater to

MWRD. Hinsdale admits that most of its system conveys wastewater to FCWRD.

4.

The Illinois Department of Transportation (IDOT) is a state agency created

by the Department of Transportation Law, 20 ILCS 2705/2705-1

et seq.

IDOT has

responsibility for planning, construction and maintenance of Illinois’ extensive

transportation network, which encompasses highways and bridges, airports, public

transit, rail freight and rail passenger systems, and includes roadways within the

boundaries of FCWRD’s service area.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 4.

5.

DuPage County is a body corporate and politic established by the Illinois

Counties Code. The DuPage County Division of Transportation (DDOT) is an agency of

DuPage County, and is responsible for the construction and maintenance of the County

Highway system which serves the over 900,000 residents of DuPage County. DDOT

maintains approximately 220 miles of arterial highway and 50 miles of recreational trails

in DuPage County.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 5.

6.

MWRD is a municipal government agency created by the Illinois

Legislature in 1889. MWRD has a combined sewer overflow equivalent of 0.5-million

people. The District serves an area of 872 square miles which includes the City of

Chicago and 124 suburban communities. MWRD is also the designated stormwater

management agency for Cook County.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 6.

7.

The way in which Hinsdale, IDOT, DDOT, and MWRD implement their

statutory duties contributes excess flow during rainfall events to FCWRD, which has a

disproportionate effect on FCWRD’s system.

2

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

Answer:

Hinsdale denies that it contributes excess flow to FCWRD at any time.

Hinsdale lacks knowledge sufficient to form a belief as to the remaining allegations

contained in paragraph 7.

8.

As a result of these excess flows within FCWRD’s sewer system, Sanitary

Sewer Overflows (“SSO”) and Combined Sewer Overflows (“CSO”) events occur during

wet weather.

Answer:

Hinsdale denies allegations of paragraph 8.

The Flagg Creek Water Reclamation District System

9.

The FCWRD wastewater treatment plant (WWTP) is located at 6975

Commonwealth Avenue in the Village of Burr Ridge, Illinois. It is designed to take dry

weather flow and limited wet weather flow. See Figure 1.

Answer:

Hinsdale admits the allegations of paragraph 9.

10.

The FCWRD has an interceptor system that serves the Village of

Clarendon Hills, the Village of Hinsdale, and portions of the Village of Westmont,

traveling east along the BNSF railroad from Illinois Route 83 to County Line Road, and

then south toward Interstate 294 (I-294), to the FCWRD WWTP. This interceptor is

known as the “Mainline Interceptor.” See Figure 1.

Answer:

Hinsdale admits that FCWRD has an interceptor that serves Hinsdale.

Hinsdale lacks knowledge sufficient to form a belief as to the remaining allegations

contained in paragraph 10.

11.

FCWRD also has a 60-inch interceptor (“West 60-Inch Interceptor”) that

runs south along I-294 and collects flows from three other interceptors: the 55

th

Street

Interceptor, running west along 55

th

Street; the 59

th

Street Interceptor, running south

along 59

th

Street; and the 63

rd

Street Interceptor, running south along 63

rd

Street. See

Figure 1.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 11.

12.

FCWRD’s other main interceptor is the Spinning Wheel Interceptor

formerly known as the Storm Water Pollution Control Interceptor which runs from its

Spinning Wheel Pumping Station south along I-294.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 12.

13.

Historically, bypasses from the FCWRD sewer system as well as the

Hinsdale sewer system overflowed to Flagg Creek. On information and belief, in the

3

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

1970s, FCWRD was directed by the Sanitary Water Board to close its CSOs and accept

Hinsdale’s CSOs until Hinsdale separated its sewers, which Hinsdale was also ordered

by the Sanitary Water Board in 1968 to separate by 1978.

Answer:

Hinsdale admits that it has an NPDES permit for four CSO discharge

points to Flagg Creek. Hinsdale denies that the Sanitary Water Board has ever issued

an order to Hinsdale. Further, Hinsdale submits that any such order would have been

of no force and effect following the passage in 1970 of the Illinois Environmental

Protection Act, 415 ILCS 5/1,

et seq.

, the creation, thereby, of the Illinois Environmental

Protection Agency (“Illinois EPA”) and the Illinois Pollution Control Board (“Illinois

PCB”), and the adoption of rules and regulations relating to CSO discharges. Hinsdale

lacks knowledge sufficient to form a belief as to the remaining allegations contained in

paragraph 13.

14.

To comply with the order directed to it, FCWRD constructed the Spinning

Wheel Pumping Station and installed a new sixty inch interceptor, the Spinning Wheel

Interceptor, along Interstate 294. See Figure 1.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 14.

15.

The Spinning Wheel Pumping Station and Spinning Wheel Interceptor

were generally intended to serve two purposes: to serve a new northern service area

and to catch overflows from the FCWRD’s existing forty two inch interceptor. It has also

temporarily provided relief to Hinsdale’s CSOs until Hinsdale could separate its sewers

in accordance with the Sanitary Water Board’s order.

Answer:

Hinsdale denies that the Sanitary Water Board ever issued an order to

Hinsdale. Further, Hinsdale submits that any such order would have been of no force

and effect following the passage in 1970 of the Illinois Environmental Protection Act,

415 ILCS 5/1,

et seq.

, the creation, thereby, of the Illinois Environmental Protection

Agency (“Illinois EPA”) and the Illinois Pollution Control Board (“Illinois PCB”), and the

adoption of rules and regulations relating to CSO discharges. Hinsdale lacks

knowledge sufficient to form a belief as to the remaining allegations contained in

paragraph 15.

16.

The pumping capacity of the Spinning Wheel Pumping Station is greater

than the capacity of the Spinning Wheel Interceptor so long as that interceptor receives

wastewater from Hinsdale’s combined sewer system, so that during rain events,

surcharges and overflows occur in the Spinning Wheel Interceptor and create hydraulic

obstructions and overflows in other interceptors.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 16.

4

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

17.

FCWRD has an NPDES Permit, No. IL0022586, which allows one

discharge point for excess wet weather flows from its WWTP. Standard Condition

Number 26 of the District’s NPDES permit prohibits CSOs at any other points.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 17. Further stating, Hinsdale submits that FCWRD’s NPDES

Permit speaks for itself.

18.

The unpermitted CSO events that occur in the FCWRD system do not

comply with state regulations governing CSOs found at 35 Il. Adm. Code Part 306,

Subpart C.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 18. Further stating, Hinsdale submits that Hinsdale’s system is

in full compliance with the U.S. EPA’s CSO Control Policy and with the CSO NPDES

permit issued to Hinsdale by the Illinois EPA.

19.

The actions by Hinsdale, MWRD, IDOT and DDOT that cause stormwater

to enter the FCWRD sewer system cause or contribute to the unauthorized CSO

events.

Answer:

Hinsdale denies that it causes unauthorized CSO events. Hinsdale lacks

knowledge sufficient to form a belief as to the remaining allegations contained in

paragraph 19.

20.

FCWRD cannot comply with the terms and conditions of its NPDES permit

without the cooperation and corrective actions of Hinsdale, MWRD, IDOT and DDOT in

eliminating wet weather flows from the FCWRD system.

Answer:

Hinsdale denies that any corrective action by Hinsdale is required.

Hinsdale lacks knowledge sufficient to form a belief as to the remaining allegations

contained in paragraph 20.

Count I: The Village of Hinsdale

21.

Hinsdale owns and operates a combined sewer system, and collects fees

from certain residents for its ownership and operation of the combined sewer system.

Answer:

Hinsdale admits that a portion of its sewer system is combined. Hinsdale

admits the remaining allegations of paragraph 21.

22.

Hinsdale’s combined sewer system allows storm water drainage from

streets and public and private property during storm events to combine directly with

sanitary waste flows.

5

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

Answer:

With respect to the portion of Hinsdale’s system that is combined,

Hinsdale admits the allegations of paragraph 22. Hinsdale denies the remaining

allegations of paragraph 22.

23.

The combined sewer system serving Hinsdale was constructed prior to

1900 and is constructed primarily of brick and clay tile piping. On information and belief,

it is in poor repair.

Answer:

Hinsdale admits some portions of its system were constructed prior to

1900. Hinsdale denies the remaining allegations of paragraph 23.

24.

The primary flows from Hinsdale to the FCWRD system occur through the

Mainline Interceptor at two main locations: County Line Road and Highland Avenue,

and Third Avenue and Princeton Road.

Answer:

Hinsdale admits the allegations in paragraph 24.

25.

On information and belief, there is at least one additional unknown sewer

connection along FCWRD’s Mainline Interceptor from Hinsdale.

Answer:

Hinsdale denies the allegations of paragraph 25.

26.

Hinsdale holds an NPDES permit, No. IL0066818, granted by the Illinois

Environmental Protection Agency (Illinois EPA), which authorizes discharges to Flagg

Creek from four Combined Sewer Overflow (CSO) points. On September, 6, 2005,

Illinois EPA issued a public notice proposing to renew that permit.

Answer:

Hinsdale admits the allegations of paragraph 26.

27.

Special Condition No. 6 of Hinsdale’s NPDES Permit expressly requires

that: “Permitter shall comply with the nine minimum controls contained in the National

CSO Control Policy published in the Federal Register on April 19, 1994.”

Answer:

Hinsdale submits that Hinsdale’s NPDES Permit speaks for itself.

28.

Consistent with the Illinois Pollution Control Board (Board) regulations,

Hinsdale’s NPDES permit requires first flush and ten times average dry weather flows to

be treated before Hinsdale discharges from any of its permitted CSOs.

Answer:

Hinsdale denies that its NPDES permit requires that only ten times

average dry weather flows be treated. Further stating, Hinsdale submits that its NPDES

permit speaks for itself and requires in relevant part:

All dry weather flows, the first flush of storm flows, and additional flows,

but not

less than ten times the average dry weather flow for the design year, shall be

6

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

conveyed

to the Hinsdale Sanitary District and MWRDGC – Stickney STP for

treatment. (NPDES Permit IL0066818, page 2, par. 2, emphasis added.)

Hinsdale admits the remaining allegations of paragraph 28.

29.

On information and belief, Hinsdale does not utilize its authorized CSO

points frequently because of these restrictions, instead diverting a large volume of wet

weather flows far in excess of ten times the average dry weather flow to FCWRD.

Answer:

Hinsdale admits that during some storm events it conveys more than ten

times the average dry weather flow to FCWRD. Further stating, Hinsdale submits that it

is in full compliance with its NPDES permit. Hinsdale denies the remaining allegations

of paragraph 29.

30.

Because the MWRD sewer system has flow restrictors in its junction

chambers where flows from Hinsdale are directed to the MWRD’s sewer system,

FCWRD receives all of the wet weather flows from Hinsdale.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraph 30.

31.

The large volume of wet weather flows from Hinsdale, combined with the

short travel time, surcharges FCWRD interceptors. The Mainline Interceptor and its

Spinning Wheel Interceptor are most affected, which in turn results in overflows

upstream and downstream of where Hinsdale sewers discharge to the FCWRD’s

interceptor.

Answer:

Hinsdale denies that it contributes excess flows to FCWRD and that it

causes unauthorized CSO events. Hinsdale lacks knowledge sufficient to form a belief

as to the remaining allegations contained in paragraph 31.

32.

The large volume of wet weather flows from Hinsdale cause both Hinsdale

and the FCWRD to experience unauthorized CSOs within their respective systems.

Answer:

Hinsdale denies the allegations of paragraph 32.

33.

The large volume of wet weather flows from Hinsdale disrupts the flow to

the FCWRD’s wastewater treatment facility and interferes with its effective operation.

Answer:

Hinsdale denies the allegations of paragraph 33.

34.

The large volume of wet weather flows from Hinsdale interferes with

FCWRD’s ability to allow capacity for other municipalities that have separate sewers.

Answer:

Hinsdale denies the allegations of paragraph 34.

7

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

35.

On information and belief, Hinsdale has never fully complied with the

direction of the Illinois Sanitary Water Board issued in 1968 directing Hinsdale to

separate its sewers.

Answer:

Hinsdale denies that the Sanitary Water Board ever issued an order

directing Hinsdale to separate its sewers. Further stating, Hinsdale submits that any

such order would have been of no force and effect following the passage in 1970 of the

Illinois Environmental Protection Act, 415 ILCS 5/1,

et seq

., the creation, thereby, of the

Illinois EPA and the Illinois PCB, and the adoption of rules and regulations relating to

CSO discharges. Further stating, Hinsdale submits that it is in full compliance with its

NPDES permit, which permit authorizes Hinsdale’s utilization of a combined sewer

system.

36.

Hinsdale also directs a leaf collection program. On information and belief,

the program operates by directing Hinsdale residents to place leaves in the parkway on

the day of leaf collection, but Hinsdale does not address those leaves that are not

properly placed in the parkway or that are placed in the street and allowed to wash into

the street drains.

Answer:

Hinsdale admits that it directs a leaf collection program. Hinsdale denies

the remaining allegations of paragraph 36.

37.

During the times in which the leaf collection program is active, a significant

residual leaf load from Hinsdale’s leaf collection program enters street drains and is

conveyed to FCWRD along with stormwater, plugging its influent screening equipment

and compromising the wastewater treatment system.

Answer:

Hinsdale denies the allegations of paragraph 37.

38.

The leaf load is conveyed to FCWRD as a result of leaves and yard waste

from Hinsdale’s roadways washing into the combined sewer system.

Answer:

Hinsdale denies the allegations of paragraph 38.

39.

By failing to separate its sewers and allowing substantial wet weather

flows to enter its combined sewer system and travel to and inundate the FCWRD

system, Hinsdale is in violation of the Sanitary Water Board’s direction to Hinsdale to

separate its sewers, Hinsdale’s NPDES Permit, and Illinois regulations governing

CSOs, found at 35 IL. Adm. Code Part 306, Subpart C.

Answer:

Hinsdale denies the allegations of paragraph 39. Hinsdale denies that the

Sanitary Water Board ever issued an order directing Hinsdale to separate its sewers.

Further stating, Hinsdale submits that any such order would have been of no force and

effect following the passage in 1970 of the Illinois Environmental Protection Act, 415

ILCS 5/1,

et seq

., the creation, thereby, of the Illinois EPA and the Illinois PCB, and the

adoption of rules and regulations relating to CSO discharges. Further stating, Hinsdale

8

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

submits that it is in full compliance with U.S. EPA’s CSO Policy and its NPDES permit,

which permit authorizes Hinsdale’s utilization of a combined sewer system.

40.

By failing to separate its sewers and sending substantial wet weather

flows to the FCWRD system, Hinsdale is violating the Act’s prohibition on causing or

contributing to water pollution and violating regulations and standards adopted by the

Board under the Act, 415 ILCS 5/12(a).

Answer:

Hinsdale denies the allegations of paragraph 40.

41.

By failing to separate its sewers and sending substantial wet weather

flows to the FCWRD system, Hinsdale is in violation of the conditions of its NPDES

Permit from Illinois EPA, and in violation of Act, 415 ILCS 5/12(b).

Answer:

Hinsdale denies the allegations of paragraph 41.

42.

By failing to separate its sewers and sending substantial wet weather

flows to the FCWRD system, Hinsdale is in violation of the Board rule at 35 IL. Adm.

Code 307.1101, prohibiting any person from introducing pollutants that interfere with the

operation and performance of FCWRD.

Answer:

Hinsdale denies the allegations of paragraph 42.

43.

By failing to separate its sewers and sending substantial wet weather

flows to the FCWRD system, Hinsdale is interfering with FCWRD’s fulfillment of its

statutory duty to provide capacity for sanitary flows from existing and new residents

within its service area.

Answer:

Hinsdale denies the allegations of paragraph 43.

44.

By failing to operate its leaf collection program to prevent leaves and

stormwater from entering the FCWRD system, Hinsdale is in violation of Hinsdale’s

NPDES Permit.

Answer:

Hinsdale denies the allegations of paragraph 44.

45.

By failing to operate its leaf collection program to prevent leaves from

entering the FCWRD system, Hinsdale is in violation of the Act’s prohibition on causing

or contributing to water pollution and violating regulations and standards adopted by the

Board under the Act, 415 ILCS 512/(a).

Answer:

Hinsdale denies the allegations of paragraph 45.

46.

By failing to operate its leaf collection program to prevent leaves from

entering the FCWRD system, Hinsdale is in violation of its NPDES Permit and Illinois

regulations governing CSOs, found at 35 IL. Adm. Code Part 306, Subpart C.

9

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

Answer:

Hinsdale denies the allegations of paragraph 46.

47.

By failing to operate its leaf collection program to prevent leaves from

entering the FCWRD system, Hinsdale is in violation of the conditions of its NPDES

Permit from Illinois EPA, and in violation of the Act, 415 ILCS 5/12(b).

Answer:

Hinsdale denies the allegations of paragraph 47.

48.

By failing to operate its leaf collection program to prevent leaves from

entering the FCWRD system, Hinsdale is in violation of the Board rule at 35 IL. Adm.

Code 307.1101, prohibiting any person from introducing pollutants that interfere with the

operation and performance of FCWRD.

Answer:

Hinsdale denies the allegations of paragraph 48.

49. – 87.

Answer:

Hinsdale lacks knowledge sufficient to form a belief as to the allegations

contained in paragraphs 49 through 87, all of which are directed to other parties.

Affirmative Defenses

1.

Numerous allegations in FCWRD’s Complaint are based on the supposed

issuance of a 1968 order by the now defunct Illinois Sanitary Water Board.

2.

When it existed, the Sanitary Water Board was a creature of statute. (See

19 Ill. Rev. Stat. 145.1 ,

et seq.

(1969)) Under its statutory authority, the Sanitary Water

Board had the ability to issue orders after a full due process hearing to abate violations

of the Sanitary Water Board Act or regulations thereunder. (See 19 Ill. Rev. Stat. 145.7,

145.8 and 145.9 (1969)) The Sanitary Water Board Act also provided for enforcement

of orders issued by the Sanitary Water Board. However, the authority to enforce a

Sanitary Water Board order rested exclusively with the State’s Attorney of the county

where the violation occurred or with the Illinois Attorney General. Such actions could

only be brought in Circuit Court. (See 19 Ill. Rev. Stat. 145.13(c) and 145.14. (1969))

The Sanitary Water Board Act did not authorize the enforcement of a Sanitary Water

Board order by a private party or by the Illinois Pollution Control Board. (Copies of all of

the cited provisions are attached hereto and incorporated herein by reference.)

3.

In 1970, the Illinois General Assembly passed the Illinois Environmental

Protection Act (“Act”), 415 ILCS 5/1,

et seq

., into law. Upon the passage of the Illinois

Environmental Protection Act, the Sanitary Water Board Act was repealed, thereby

abolishing the Sanitary Water Board.

10

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

4.

Section 4 of the Act, 415 ILCS 5/4, establishes the Illinois EPA and

provides,

inter alia

, that: “The Agency is hereby designated as water pollution agency

for the state for all purposes of the Federal Water Pollution Control Act, as amended . . .

.” (415 ILCS 5/4(l))

5.

Section 5 of the Act, 415 ILCS 5/5, establishes the Illinois PCB and

provides,

inter alia

, that: “The Board shall have authority to conduct proceedings upon

complaints charging violations of this Act, any rule or regulation adopted under this Act,

any permit or term or condition of a permit, or any Board order . . . .” (415 ILCS 5/5(d))

6.

Prior to 2002, Section 49 of the Act, 415 ILCS 5/49, provided, in relevant

part:

(a) Until the Board and the Agency established by this Act have been appointed

and taken office, the functions assigned to the Board and to the Agency shall be

performed by the members of the existing Air Pollution Control Board and

Sanitary Water Board and by the Department of Public Health.

* * *

(d) All orders entered, permits or certifications granted, and pending proceedings

instituted by the Air Pollution Control Board, the Sanitary Water Board, or the

Department of Public Health relating to subjects embraced within this Act shall

remain in full force and effect until superseded by actions taken under this Act.

In 2002, these portions of Section 49 of the Act were repealed.

7.

Members of the Illinois PCB and Illinois EPA were appointed in 1970

shortly after the passage of the Act, thereby eliminating any further role for former

members of the Sanitary Water Board pursuant to Section 49(a) of the Act, 415 ILCS

5/49(a).

8.

Section 39(b) of the Act, 415 ILCS 5/39(b), grants authority to the Illinois

EPA to issue NPDES permits and provides,

inter alia

, that “All NPDES permits shall

contain those terms and conditions, including by not limited to schedules of compliance,

which may be required to accomplish the purposes and provisions of this Act.”

9.

Pursuant to its authority, the Illinois PCB has adopted rules and

regulations regarding CSO discharges sometime between 1970 and 1975. See 35 Ill.

Adm. Code Part 306.

10.

On or about August 22, 2000, Hinsdale received NPDES Permit IL

0066818 from Illinois EPA authorizing CSO discharges at four discharge points. The

NPDES permit contains numerous conditions. Absent from the NPDES permit is any

condition that requires Hinsdale to fully separate its combined sewer system. NPDES

Permit IL 0066818 is an explicit authorization for Hinsdale to own and operate a

combined sewer system.

11

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

11.

The adoption by the Illinois PCB of 35 Ill. Adm. Code Part 306 and Illinois

EPA’s issuance of an NPDES Permit to Hinsdale authorizing CSO discharges, are

actions taken under the Act which supersede any Sanitary Water Board orders which

may have been issued prior to passage of the Act in 1970.

12.

No provision of the Act gives a private party the authority to seek

enforcement of a Sanitary Water Board order. Nor does any provision of the Act give

the Board the authority to enforce a Sanitary Water Board order.

13.

Hinsdale is in full compliance with the terms and conditions set forth in

NPDES Permit IL 0066818.

14.

Hinsdale is in full compliance with the requirements of the Act and the

rules and regulations of the Illinois PCB relating to combined sewer systems.

WHEREFORE, for all of the foregoing reasons, Hinsdale requests that the Illinois

Pollution Control Board:

A.

Issue an order finding that any order of the Sanitary Water Board that may

have been issued in 1968 is of no force and effect and has been superseded by the

passage of the Illinois Environmental Protection Act, the creation of the Illinois EPA and

the Illinois PCB, the adoption of 35 Ill. Adm. Code Part 306 and the issuance of an

NPDES Permit by Illinois EPA to Hinsdale;

B.

Issue an order finding that the Illinois PCB has no authority to enforce

Sanitary Water Board orders;

C.

Issue an order finding that private parties have no authority to seek

enforcement of Sanitary Water Board orders;

D.

Issue an order finding that Hinsdale is in full compliance with NPDES

Permit IL 0066818;

E.

Issue an order finding that Hinsdale is in full compliance with the Act and

the Illinois PCB rules and regulations relating to combined sewer systems; and

12

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

F.

Issue an order dismissing FCWRD’s complaint against Hinsdale with

prejudice.

VILLAGE OF HINSDALE

By:

_____________________

William D. Seith, its Attorney

Dated: August 28, 2006

Total Environmental Solutions, P.C.

635 Butterfield Road, Suite 240

Oakbrook Terrace, IL 60181

630-620-9100

wdseith@tespc.com

13

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ATTACHMENTS

14

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 28, 2006

---