BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
RECEIVED
CLERK’S OFFICE
PEOPLE OFTHE STATE OF
ILLINOIS,
)
FEB
1
02004
STATE OF ILLINOIS
Complainant,
)
Pollution
Control Board
vs.
)
PCB
NO. 04-81
)
(Enforcement)
EMMETT UTILITIES,
INC.,
an
Illinois
.)
corporation, and
RUSSELL
D.
)
THORELL,
individually and
as
)
president of EMMETT UTILITIES,
INC.,
)
Respondent.
NOTICE
OF FILING
To:
EMMETT UTILITIES,
INC.
RUSSELL D.
THORELL
President
RR2,
Box 58N
Oquawka,
IL 61469
PLEASE TAKENOTICE that on this date
I mailed for filing with the Clerk of the Pollution
Control
Board
of the
State of
Illinois, COMPLAINANT’S MOTION
FOR SUMMARY JUDGMENT
REGARDING
RUSSELL
D.
THORELL
and
COMPLAINANT’S
MOTION
FOR
SUMMARY
JUDGMENT
REGARDING
EMMETT
UTILITIES,
INC:,a.copy
of which
is attached
hereto
and
herewith
served
upon you.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MADIGAN,
Attorney General
of the
State of Illinois
MATTHEW J.
DUNN, Chief,
Environmental Enforcement/Asbestos
Litigation
Division
BY:_____________________
THOMAS
DAVIS,
Chief
Assistant Attorney General
Environmental Bureau
500 South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
February
5, 2004
CERTIFICATE
OF SERVICE
I
hereby certify that
I did
on
February 5, 2004,
send by
First Class
Mail, with
postage
thereon fully
prepaid, by depositing in a
United
States
Post Office Box a true and
correct copy
of the following instruments entitled
NOTICE OF FILING,
COMPLAINANT’S MOTION
FOR
SUMMARY JUDGMENT
REGARDING RUSSELL
D. THORELL and
COMPLAINANT’S
MOTION
FOR
SUMMARY JUDGMENT REGARDING
EMMETT UTILITIES,
INC.,
To:
EMMETT UTILITIES,
INC.
RUSSELL D.
THORELL
President
RR2,
Box 58N
Oquawka,
IL 61469
and the original and
ten copies by
First Class
Mail with
postage thereon fully prepaid
of the
same foregoing instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
James R
ThOmpson
Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois
60601
A copy was also sent
to:
Carol Sudman
Hearing Officer
Illinois Pollution
Control
Board
1021 N. Grand Avenue East
Springfield,
IL 62794
Thomas Davis,
Chief
Assistant Attorney General
This filing is submitted
on recycled
paper
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S OFFiCE
PEOPLE OF THE STATE OF ILLINOIS,
)
FEB
102004
Complainant,
)
STATE OF ILLINOIS
)
Pollution
Control Board
v.
)
PCB
NO. 04-81
)
(Enforcement)
EMMETT UTILITIES,
INC.,
)
an
Illinois corporation,
and
RUSSELL
D.
THORELL, individually and
)
as
president of EMMETT UTILITIES, INC.
)
Respondents.
COMPLAINANT’S
MOTION
FOR SUMMARY JUDGMENT
REGARDING
RUSSELL
D. THORELL
Complainant,
PEOPLE OF THE STATE
OF ILLINOIS,
by
Lisa Madigan, Attorney
General of the State of Illinois, pursuant
to Sections 101.516(a) and 103.204(d) of the Board’s
Procedural
Rules,
35
Ill. Adm. Code
101 .516(a)
and
103.204(d), hereby moves for Summary
Judgment against the Respondent,
RUSSELL
D. THORELL, and states as follows:
1.
The Complaint against EMMETT UTILIT1ES,
INC.,
an
Illinois
corporation,
and
RUSSELL
D.
THORELL,
individually and as president of EMMETT UTILITIES,
INC., was filed
with
the
Board
on
November
10,
2003.
The Complaint was served
upon
both Respondents
by
certified mail on
November
8,
2003,
see
attached exhibit for proof of service
along with the
notice required
by
Section
103.204(f), to
wit:
“Failure to
file an
answer to this complaint within
60
days may have severe consequences.
Failure to
answer will mean that
all
allegations in the
complaint will
be taken as
if admitted for purposes of
this proceeding.
If you
have any
questions about this procedure,
you
should contact the hearing
officer assigned to this
proceeding, the Clerk’s Office or an attorney.”
1
2.
In Count
I, the
Complaint alleges that the
Respondents failed
to
immediately
notify the Illinois
EPA and to take appropriate action to
protect the supply in violation of Section
607.103(c) of the Board’s Public Water Supplies Regulations,
35
III. Adm.
Code 607.103(c),
and
Section
18(a)(2) of the Act, 415
ILCS 5/18(a)(2)
(2002).
3.
In Count
II,
the Complaint alleges that the Respondents failed to
provide
continuous operation
and maintenance of public water supply facilities so that the water shall
be
assuredly safe in
quality and
adequate
in
quantity for ordinary domestic
consumption in
violation of Section
601.101
of the Board’s Public Water Supplies Regulations,
35
III.
Adm.
Code 601.101, and
Section
18(a)(2) of the Act, 415
ILCS 5/18(a)(2)
(2002).
4.
In
Count
III,
the Complaint
alleges that the Respondents caused or allowed the
discharges
of untreated effluent,
raw sewage, and overflows from the treatment system
and
sanitary sewers so as to cause or tend
to
cause water pollution
in violation
of Section l2Ca)of
the Act, 415
ILCS 5/12(a)
(2002).
5.
In Count IV, the Complaint alleges that the Respondents caused
offensive
conditions,
including
unnatural color,
odor, sludge,
and turbidity,
in the receiving
stream in
violation of the water quality standard of 35
Ill. Adm.
Code 302.203 and Section
12(a)
of the
Act, 415
ILCS
5/12(a) (2002).
6.
In
Count IV,
the Complaint
alleges that the Respondents caused or allowed the
discharge of discharges of untreated effluent,
raw sewage, and overflows from the treatment
system and sanitary sewers
in violation of the NPDES permit and
Section
12(f) of the Act, 415
ILCS 5/12(f)
(2002).
7.
No Answer or responsive pleadings to the Complaint have been filed
and,
therefore,
all material
allegations of the Complaint will be taken
as
admitted pursuant to Section
103.204(d).
2
8.
On
January 9, 2004,
Complainant submitted
to
the Hearing
Officer a copy of
correspondence dated
December 30, 2003, since this document was apparently not filed
with
the Clerk.
This document was sent to the Attorney General’s Office by Russell
Thorell under
the letterhead
of and
ostensibly on behalf of EMMETT UTILITIES,
INC.,
in Mr.
Thorell’s stated
capacity
as President of EMMETT UTILITIES,
INC.
This document cannot serve as an
answer
on
behalf of RUSSELL THORELL
as
required
by
Section 103.204(d) of
the Board’s Procedural
Rules because it does not purport
to
specifically deny the material allegations of the Complaint.
While this Respondent could
have
appeared
in
his own behalf as
an individual,
he
has failed to
address and
satisfy the procedural
and substantive requirements.
9.
Accordingly, there is
no genuine issue
as to
any material fact as
to the prima
facie
proof of the violations cited therein and Complainant is entitled to judgment as a matter of
law as to
Counts
I,
Il,
III,
IV and V.
10.
RUSSELL THORELL is pursuant to
Section
103.204(d)
precluded from pleading
any
affirmative defense since this Respondent has
failed to timely file
an answer to the
Complaint.
10.
Complainant requests
pursuant to
Section
103.212 that a hearing
be held on
issues
relating to the requested
remedy,
including
civil penalties
and attorney’s fees.
WHEREFORE,
Complainant, People of the State of Illinois, respectfully request that the
Board
grant the following
relief:
A)
Enter summary judgment in favor of Complainant
and a finding of liability
against
RUSSELL THORELL on
Counts
I
,
II,
III,
IV and V of the Complaint;
B)
Schedule a
hearing
upon the issues of civil penalty
and other relief;
and
3
C)
Grant
such other relief as the Board
deems appropriate.
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:____________________
THOMAS
DAVIS,
Chief
Environmental
Bureau
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
February 5,
2004
4
U
complete items 1,
2, and
3. Also complete
item
4 if Restricted
Delivery
is desired.
a
Print your name and
address on
the reverse
so that we can
return the
card to you.
a
Attach this card
to the
back of the mailpiece,
or on the front
if space
permits.
1.
ArtIcle Addressed
to:
Emmett Utilities, Inc.
Russell D. Thorell
President
RR2, Box 58N
Oquawka,
IL 61469
~
A.~,~1gna
re
,:ç1J7
~&~ent
1””
~
0
Addressee
B(~ecei
(19’rinted
Name)
C.
Date/Df
De)ivery
-
.
~
lW~,eryaddr~ss
ctfferent from
item 1?
~
Yes
If YES,
enter delivery
address below:
0
No
3.
Service Type
~
Certified MeiI
o
Registered
o
Insured Mail
o
Express Mail
-
~~ReturnReceipt for Merchandise
0
COD.
4.
Restricted Delivery?
(Extra
Fee)
0
Yes
2.
Article Number
(Transfer from service label)
7000
0520
0012
5364
563~3
PS Form
3811,
August 2001
Domestic
Return Receipt
1O2595-O~-M-25O9
SENDER:
COMPLETE THIS SECTION
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARDRECEIVE
PEOPLE OF THE STATE OF ILLINOIS,
)
E
FEB
10
2004
Complainant,
oIATE OF ILLINOIS
rOilUtgon Control B
v.
)
PCB NO.
04- 81
)
(Enforcement)
EMMETT UTILITIES,
INC.,
)
an
Illinois
corporation,
and
)
RUSSELL
D. THORELL,
individually and
)
as president of EMMETT UTILITIES,
INC.
)
Respondents.
COMPLAINANT’S
MOTION
FOR SUMMARY JUDGMENT
REGARDING
EMMETT UTILITIES,
INC.
Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
by
Lisa
Madigan, Attorney
General of the
State
of Illinöi~pUrsüa nt
to
Sëctiöuis 10t516(a) and
103.204(d) of the Board’s
Procedural
Rules,
35
III. Adm.
Code
101 .516(a) and
103.204(d), hereby moves for
Summary
Judgment against the Respondent,
EMMETT UTILITIES,
INC., and
states as
follows:
1.
The Complaint against EMMETT UTILI1IES,
INC.,
an
Illinois corporation, and
RUSSELL
D. THORELL,
individually and as president of EMMETT UTILITIES,
INC., was
filed
with the Board
on
November 10,
2003.
The Complaint was
served upon
both
Respondents by
certified
mail on November
8, 2003,
see
attached exhibit for proof of
service
along with the
notice required
by Section
103.204(f),
to wit:
“Failure to file an
answer to
this complaint within
60 days
may have
severe
consequences.
Failure to
answer will mean that
all
allegations in the
complaint will
be taken as
if admitted for purposes of this proceeding.
if you
have any
questions
about this procedure, you
should contact the hearing
officer assigned
to this
proceeding, the Clerk’s Office or an
attorney.”
1
2.
In Count
I, the
Complaint alleges that the
Respondents
failed to immediately
notify the Illinois EPA and to take appropriate action to protect the supply in violation of Section
607.103(c) of the Board’s Public Water Supplies Regulations, 35111. Adm. Code 607.103(c),
and Section 18(à)(2) of the Act, 415 ILCS 5/18(a)(2) (2002).
3.
In
Count
II,
the Complaint alleges that the Respondents failed
to
provide
continuous operation
and
maintenance of public water supply facilities so that the water shall
be
assuredly safe in
quality and adequate
in
quantity for ordinary domestic consumption
in
violation of Section
601.101
of the Board’s Public Water Supplies
Regulations,
35111. Adm.
Code 601.101, and
Section
18(a)(2) of the Act, 415
ILCS 5/18(a)(2)
(2002).
4.
In
Count Ill,
the Complaint alleges that the Respondents caused
or allowed the
discharges of untreated effluent,
raw sewage, and
overflows from
the treatment system and
sanitary
sewers so as to
cause or tejid tpca~s~water
pollution
in violation
of Section
12(a) of
the Act, 415
ILCS 5/12(a) (2002).
5.
In
Count
IV, the Complaint alleges that the
Respondents caused
offensive
conditions, including
unnatural
color,
odor, sludge,
and turbidity,
in the receiving
stream in
violation of the water quality standard of 35
Ill. Adm.
Code 302.203 and
Section
12(a) of the
Act, 415
ILCS
5/12(a) (2002).
6.
in
Count IV,
the Complaint alleges that the Respondents caused
or allowed the
discharge of discharges of untreated effluent,
raw sewage,
and
overflows from the treatment
system and
sanitary sewers
in violation
of the NPDES
permit and Section
12(f) of the Act, 415
ILCS 5/12(f) (2002).
7.
No Answer or responsive pleadings to the Complaint
have been filed and,
therefore, all
material
allegations of the complaint will
be
taken as
admitted
pursuant to
Section
103.204(d).
2
8.
On January 9, 2004, Complainant submitted to the Hearing Officer a copy of
correspondencedated December 30, 2003, since this document was apparently not filed with
the Clerk.
This documentwas sent to the Attorney General’s Office by Russell Thorell under
the letterhead ofand ostensibly on behalf of EMMETT UTILITIES, INC., in Mr. Thorell’s
stated
capacity as President of EMMETT UTILITIES, INC. This document cannot serve as an answer
on
behalf of EMMETT UTILITIES,
INC.,
as
required
by
Section
103.204(d) of the Board’s
Procedural
Rules because
it does not purport
to specifically deny the material allegations of the
Complaint and
because Mr. Thorell is not authorized
by Section
101.400(a) to
appear on
behalf
of EMMETT UTILITIES,
INC.,
since he is not
an attorney.
9.
Accordingly, there
is no genuine issue
as to
any material fact as to the prima
facie proof of the violations
cited therein and
Complainant is entitled to judgment as a
matter of
law as to
Counts
I,
II,
III,
IV and V.
10.
EMMETT UTILITIES,
INC.,
is pursuant to Section
103.204(d) precluded from
pleading any affirmative defense
since this Respondent has failed
to timely file
an answer to the
-
Complaint.
10.
Complainant
requests pursuant to
Section
103.212 that a
hearing be
held on
issues
relating to
the requested remedy,
including
civil penalties and
attorney’s fees.
WHEREFORE,
Complainant, People of the State
of Illinois, respectfully request that the
Board grant the following
relief:
A)
Enter summary judgment in favor of Complainant and
a finding of liability against
EMMETT UTILITIES,
INC.,
on Counts
I,
II,
Ill,
IV and V of the Complaint;
B)
Schedule a
hearing
upon the issues of civil penalty and
other relief;
and
3
C)
Grant such other reliefas the Board deems appropriate.
Respectfullysubmitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISAMADIGAN,
AttorneyGeneral
of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:____________________
THOMAS
DAVIS, Chief
Environmental
Bureau
Assistant Attorney General
500
South
Second Street
Springfield,lllinbis 62706
217/782-9031
Dated:
February 5, 2004
4
r~i-.jir1!
i~i~i:i~.~.i.PIii~I,J~’1I!i~’ii’
re
A//~~
~ent
0
Addressee
B(’~ecei~~J
k~(Printed
Name)
C.
Date1ol D~Jivery
--
.///~/~‘
~
D. l~-~i~’ery
address different from
item I?
0 ~es
II YES, enter delivery address below:
0
t’jo
3.
Service Type
-~
Certified M~il
0
Express
Mail
o
Registered
~Return
Receipt for Merchandise
o
Insured Mail
0
COD.
4.
Restricted
De
very? (Extra
Fee)
0
Yes
2.
Article Number
(Transfer from service label)
70 00
0520
0012
5364
5633
PS Form
3811,
August 2001
Domes tic
Retur n Receipt
102595-O1-M-2509
SENDER:
COMPLETE THIS SECTION•
I
Complete items
1,
2, and
3. Also complete
item
4 if Restricted Delivery
is desired.
•
Print your name and address on
the reverse
so that we can return
the card to you.
I
Attach this card to the
back of the mailpiece,
or on
the front
if space
permits.
1.
ArtIcleAddressed to:
Emmett Utilities,
Inc.
Russell D. Thorell
President
RR2,
Box 58N
Oquawka,
IL 61469