ILLINOIS POLLUTION CONTROL BOARD

August 23, 2001

 

 

PEOPLE OF THE STATE OF ILLINOIS,

 

Complainant,

 

v.

 

CITY OF WAUKEGAN, a municipal

corporation,

 

Respondent.

 

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PCB 01-104

(Enforcement – Water)

ORDER OF THE BOARD (by N.J. Melas):

 

On January 5, 2001, the Attorney General’s Office, on behalf of the people of the State of

Illinois (complainant) initiated this action by filing a four-count complaint (comp.). Complainant

alleged that respondent City of Waukegan (Waukegan) violated various sections of the

Environmental Protection Act (Act) and the Board’s regulations when it discharged untreated

sewage into a drainage ditch. Waukegan filed an answer (ans.) to the complaint on February

9, 2001.

 

This matter is before the Board on a motion for summary judgement (mot.) filed by

complainant on April 18, 2001. On May 14, 2001, Waukegan filed a motion for leave to file

instanter

response to the motion for summary judgment and a response (resp.). In the response,

Waukegan denied that it violated Section 306.305(c) of the Board’s regulations. On May 22,

2001, complainant filed a motion for leave to file a reply to the response. Former Board Hearing

Officer John Knittle granted both the motion for leave to file instanter and the motion for leave

to file a reply on June 11, 2001. On June 18, 2001, complainant filed its reply to the response

(reply). On June 28, 2001, Waukegan filed a motion for leave to file instanter surreply to the

reply and a surreply (surreply). Complainant did not oppose the motion to file

instanter

surreply

and, as complainant will not be prejudiced, the Board grants it.

 

For the reasons outlined below, the Board denies complainant’s motion for summary

judgment in Count III only with respect to Section 306.305(c) of the Board’s regulations. The

Board grants complainant’s motion for summary judgment regarding all other alleged violations

in the complaint.

 

STANDARD OF REVIEW

 

Summary judgment is appropriate when the pleadings and depositions, together with any

affidavits and other items in the record, show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,

181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment, the Board

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“must consider the pleadings, depositions, and affidavits strictly against the movant and in favor

of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.

 

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181

Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871

(1986). However, a party opposing a motion for summary judgment may not rest on its

pleadings, but must “present a factual basis which would arguably entitle [it] to a judgment.”

Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).

 

UNCONTESTED FACTS

 

Summary judgment is appropriate here in that the Board has found no issues of material

fact in this matter. The relevant facts are as follows:

 

Waukegan owns and operates a sanitary sewer lift station known as the McGaw Road

Lift Station (lift station), also known as the Lakehurst Lift Station, located at 4200 West McGaw

Road in Waukegan. Two electric pumps at the lift station send untreated sewage from a wet well

to an elevated discharge pipe. The discharge pipe leads to a sewage treatment plant. Mot. at 3;

resp. at 2.

 

During April 1999, one of the pumps failed. Waukegan officials made efforts to replace

the failed pump, but they were unable to do so before the second pump failed at about 10:30 am

on July 23, 1999. With both pumps failed, untreated sewage began to back up at the lift station.

In order to avoid untreated sewage from backing up into nearby residences, Waukegan officials

employed mobile pumps to direct the sewage from the lift station to a nearby unnamed drainage

ditch. Mot. at 3-4; resp. at 2-3.

 

Illinois Environmental Protection Agency (Agency) personnel then advised Waukegan

officials against pumping the untreated sewage into the drainage ditch. From 1:00 p.m. on July

23, 1999, until noon on July 27, 1999, Waukegan pumped approximately 31,600 gallons of

untreated sewage into the drainage ditch. At around noon on July 27, Waukegan officials began

pumping sewage to a tanker truck. The truck then took the sewage to a gravity flow sewer line.

Waukegan officials obtained two new pumps on July 27 and, once the pumps were installed, the

lift station resumed normal operation on July 28, 1999. Mot at 4; resp. at 3-4.

 

Waukegan did not have a National Pollution Discharge Elimination System (NPDES)

Permit to discharge sewage from the lift station directly into a water of the State. Mot. at 5.

 

 

 

STATUTORY FRAMEWORK

 

In the four-count complaint, complainant alleges that Waukegan violated Sections 12(a),

12(c), and 12(f) of the Act and Sections 304.141(b), 306.102(a), 306.304, 306.305(c), and

309.102(a) of the Board’s regulations. Comp. at 4-6, 8, 10. In the motion for summary

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