RECE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

PEOPLE OF THE STATE OF ILLINOIS, by LISA

)

MADIGAN, Attorney General of

the State of Illinois,

)

Complainant,

)

)

PCB No. 04-138

V.

)

(Enforcement

—

Water)

PINNACLE CORPORATION d/b/a TO~

&

COUNTRY HOMES,

Respondent.

)

NOTICE OF FILING

Michael

C.

Partee

Bradley P. Halloran

Assistant Attorney General

Hearing Officer

Office ofthe Illinois Attorney General

Illinois Pollution Control Board

Environmental Bureau

James

R. Thompson Center

188

W. Randolph St.,

20th

Floor

100 W. Randolph St., Suite 11-500

Chicago, Illinois

60604

Chicago, IL

60601

PLEASE TAKE NOTICE that on this 2nd day of March, 2004, we filed with the Clerk of

the

Illinois

Pollution

Control

Board

at

100

W.

Randolph

St.,

Suite

11-500,

Chicago,

fflinois,

Defendant’s

Appearance

and

Motion to Dismiss

Complaint, copies of which are hereby served

upon you.

PINNACLE CORPORATION d/b/a

TOWN & COUNTRY HOMES,

By:__________

One ofIts Attorneys

Thomas R. Burney

Glenn C.

Sechen

Daniel C.

Shapiro

SCHAIN, BURNEY, ROSS

& CITRON, LTD.

222 North LaSalle Street, Suite

1910

Chicago, IL

60601-1102

(312) 332-0200

)

MAR

—

2

2OO~i

STATE OF ILLINOIS

Pollution

Control Board

)

)

)

TO

dcs/Pinnacle-TownCountry/ NOF-PCB-4-138

---

~ECE

WED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MAR

-

22004

STATE OF ILLINOIS

Pollution

Control Board

PEOPLE OF THE STATE OF ILLINOIS, by LISA

)

MADIGAN, Attorney General of the State ofIllinois,

)

)

Complainant,

)

)

PCB No. 04-138

V.

)

(Enforcement

—

Water)

)

PINNACLE

CORPORATION d/b/a

TOWN &

)

COUNTRY HOMES, an Illinois Corporation,

)

)

Respondent.

)

APPEARANCE

I

hereby

file

my

appearance

in

this

proceeding,

on

behalf

of

Pinnacle Corporation d/b/a

Town & Country Homes.

By:

1’•

Daniel C. Shapiro

Glenn C. Sechen

Daniel C.

Shapiro

SCHAIN, BURNEY, ROSS & CITRON, LTD.

222 North LaSalle Street, Suite 1910

Chicago, IL

60601-1102

(312) 332-0200

dcs/Pinnacle-TownCountry/Appearance

---

RECE~VED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MAR

-

22004

STATE OF

ILLINOIS

PEOPLE OF

THE STATE OF ILLINOIS, by LISA

)

Pollution Control Board

MADIGAN, Attorney General of the

State ofIllinois,

)

)

Complainant,

)

)

PCB No. 04-138

V.

)

(Enforcement

—

Water)

PINNACLE CORPORATION d/b/a

TOWN &

)

COUNTRY HOMES, an Illinois Corporation,

)

).

Respondent.

)

MOTION TO DISMISS

NOW

COMES

the

Respondent,

Pinnacle

Corporation

d/b/a

Town

&

Country Homes (“Town

& Country”), through its attorneys Schain, Burney, Ross

& Citron, Ltd., and pursuant to Section 103.204, of Title 35,

Subtitle A, Chapter 1

of the

Illinois

Administrative

Code (the “Code”)

and the Illinois Environmental

Protection

Act,

415

ILCS

5/31(c)(1)

(the

“Act”),

hereby

submits

its

motion

to

dismiss the People’s complaint and in support thereof states as follows.

BACKGROUND

On or about

February

2,

2004,

the

People of the State

of

Illinois,

by

Lisa

Madigari, Attorney General of the State

of Illinois

(“People”) filed a multi-count

complaint

against Town

&

Country

regarding

its

construction

of

a

residential

development

in Wauconda,

Illinois.

The

complaint

sets

forth five

counts

and

seeks civil penalties from Town & Country for purported violations of the Act.

---

DISCUSSION

In enforcement proceedings,

a

party

is

entitled

to

notice

of the

specific

violations

charged

against it

and

the

specific

conduct

constituting

an

alleged

violation.

Citizen’s Utilities v. Illinois Pollution Control Board, 9 Ill. App. 3d 158,

289

N.E.2d

642

(2nd

Dist.

1972).

The Act specifically

provides that

any person

who files

a complaint

must

plead, with

specificity, the manner and

extent

of a

purported violation.

~,

415 ILCS 5/31(c)(4).

Moreover, this Board’s procedural

rules

require

that

the

complaint

contain

the

dates,

location,

events,

extent,

duration

and

strength

of

discharges

or

emissions

and

consequences

thereof

which

constitute

a violation.

See

the

Code,

Chapter

35,

Section

103.204(6).

A

complaint

fails to

meet the

pleading requirements

of the

Act and

this

Board’s

procedural

rules

if

it

fails

to

plead

dates,

events,

the

nature

and

extent

and

duration

of the threat

to the

environment.

City of Des Plaines

v. Metropolitan

Sanitary District

of Greater Chicago, 60

Ill.

App. 3d

995,

377

N.E.2d

114

(1978).

Moreover,

allegations

which

do

not

plead

facts

but

rather

conclusions

are

insufficient to state

a cause of action for which the Board may grant

relief.

~.

~

Winrietkans’

Interested

in Protecting

the Environment

(WIPE)

v.

The

Illinois

Pollution

Control

Board,

55

Ill.

App.

3d 475,

370

N.E.2d

1176

(1977)

(A

complaint in administrative proceedings which is conclusory will be dismissed).

In the case at hand, the People’s complaint fails to satisfy the requirements

required under the Act and this Board’s rules as well as the principles articulated

in City

of

Des

Plaines~supra.

For

instance, while

the

complaint

references

a

-2-

---

September

24,

2002

date

and

generally

provides

a

location

of

the

project,

it

nonetheless

fails

to

articulate

the

nature,

extent,

duration

and

strength

of

discharges or omissions which Town & Country allegedly caused.

To

illustrate

the

complaint’s

inadequacies,

reference

is

made

to

paragraphs

6

through

9

of Count

I.

The

allegations

are

absent

of

any

facts

specifying the extent, duration, nature or strength of any purported discharges or

emissions by Town & Country.

For example, paragraph 6 of Count I alleges:

On September

24,

2002, there was approximately

400

acres of land disturbed by

Respondent’s construction

activities, including

a

disturbed wetland area

on

the

west side of the site.

These

allegations

are

conclusory

and

merely

suggest

that

Town

&

Country

“disturbed a portion of a wetland and/or

some portion of the 400 acres of land at

issue.”

Without

describing

the

location,

events,

extent

or

duration

of

any

purported

emissions,

it is

impossible

for Town

& Country

to respond to

these

allegations.

Paragraph

7 of Count I of the complaint alleges:

On September

24,

2002, there was inadequate erosion

and silt control measures of a large portion of the site

from which storm water discharged to the on-site and

adjacent

wetland

areas

and

the

nearby

tributary

of

Mutton Creek.

This paragraph of the complaint vaguely references “inadequate

erosion and silt

control measures” and

a discharge of storm water into

an unknown

location

of

wetlands

again

it

does

not

appraise

Town

&

Country

of the

required

facts

-3-

---

constituting

an

alleged violation.

In short,

the

allegations fail to reference

the

extent or duration of any discharges as are required.

Paragraph

9

of

the

complaint

states

that

Town

&

Country

allegedly

pumped

storm water from site basins

to adjacent wetlands.

Casually

omitted,

however, is the location of the alleged discharge, the nature of same, the extent of

discharge

and

the

consequences,

if

any,

which

occurred.

Town

&

Country

simply

is

not reasonably

apprised

of the

violations posed

against

it given

the

complaint’s tenuous and unspecified claims.

In addition,

paragraph

9

incorrectly

assumes that

the

mere

pumping

of

storm water collected in a catch basin is a violation of the water quality standard

established by

the State.

This conclusory and unsupported

allegation

is further

reason

as to why the complaint should be stricken.

As

additional

examples

of the complaint’s

defective nature, reference

is

made

to

paragraphs

19

—

24.

First,

these

paragraphs

are

replete

with

legal

conclusions.

Second, they fail to explain that there was only

a minimal

level of

rainfall which occurred

on September

24,

2002.

As such,

no harm,

if any, from

alleged discharge could

have occurred.

Importantly, the State’s complaint

fails

to

explain

in

the

above

paragraphs

whether

any

claimed

harm/damage

was

permanent or even the nature of alleged damages.

Count

II fares

no

better.

Although

the

People reference

Section

12(c)

of

the Act for the proposition that the party may not increase the quality

of strength

of contaminants into the waters, the People again fail to specifically explain how

-4-

---

or why the failure to secure a construction

permit violated said section or caused

any harm to the property in the development.

The same

problem evident

in

Count

II

exists in Count

III.

Specifically,

Count

III is

absent

of any

allegation

detailing

the

extent

of the

discharge

of a

contaminant,

the location of any purported

discharge and the purported failure

to obtain a permit.

Moreover,

Count III of the complaint fails to explain how the

alleged failure to obtain a permit caused any damage or harm.

Count IV fails to identify, with specificity, the manner in which the failure

to submit plans caused or contributed to the violation of the

Act.

Lastly,

Count

V,

like

the

prior

counts,

fails

to

articulate

the

location,

events,

extent,

duration

or strength of

any

purported

discharges or

emissions

and the consequences of the alleged violation as required.

The

unequivocal

nature of the insufficiencies

of the People’s

Complaint

are obvious.

Based upon the deficiencies

in the complaint identified above, the

complaint’s

allegations

of

conclusions,

the

failure

to

provide

the

requisite

locations,

nature,

dates,

extent,

duration

or

strength

of

any

discharges

constituting a purported violation of the Actviolate this Board’s rules.

For

the

reasons

set

forth

herein,

Town

&

Country

submits

that

the

People’s Complaint fails to satisfy the statutory and administrative regulations of

this State and should be dismissed.

-5-

---

WHEREFORE,

Respondent,

Pinnacle

Corporation

d/b/a

Town

&

Country

Homes,

requests

that

this

Board

strike

and

dismiss

Complainant’s

complaint and grant itfurther relief as this Board deems just and equitable.

Dated:

March 2, 2004

Respectfully submitted,

PINNACLE CORPORATION d/b/a

TOWN & COUNTRY HOMES,

By:________________

One ofIts Attorneys

Thomas R. Bumey

Glenn C. .Sechen

Daniel C.

Shapiro

SCHAIN, BUIRNEY,

ROSS & CITRON, LTD.

222 North LaSalle Street, Suite 1910

Chicago, IL

60601-1102

(312) 332-0200

dcs/Pinnacle-TownCountry/MotiontoDismiss

-6-

---

RECE~VED

CLERK’S

OFFICE

MAR

-

2

2004

CERTIFICATE OF SERVICE

STATE OF ILLINOIS

Pollution Control Board

I, Daniel C. Shapiro, an attorney,

certify that on March 2, 2004, I caused to be served via

messenger

delivery

a

true copy

of

the

Notice

of

Filing and

Defendant’s

Appearance

and

Motion to Dismiss Complaint, in properly addressed, postage prepaid, sealed envelopes upon:

Michael C. Partee

Assistant Attorney General

Office of the Illinois Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago, Illinois

60604

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph St., Suite 11-500

Chicago, IL

60601

Daniel C. Shapiro