ILLINOIS POLLUTION CONTROL BOARD
May 6, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
EMMETT UTILITIES UTILITIES, INC. an
Illinois corporation, and RUSSELL D.
THORELL, individually and as president of
EMMETT UTILITIES UTILITIES, INC.,
Respondents.
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PCB 04-81
(Enforcement - Water)
ORDER OF THE BOARD (by T.E. Johnson):
On November 10, 2003, the Office of the Attorney General, on behalf of the People of
the State of Illinois (People), filed a complaint against Emmett Utilities Utilities, Inc. and Russell
D. Thorell (respondents). Today the Board addresses a number of pleadings filed after
November 10, 2003. On February 10, 2004, the People filed motions for summary judgment
against both respondents. Also on February 10, 2004, Rusell Thorell (Thorell) filed a motion to
dismiss the complaint against him; the respondents filed a motion to stay the proceedings; and
Emmett Utilites, Inc. (Emmett Utilities) filed an answer. On February 20, 2004, the People filed
motions to strike Thorell’s motion to dismiss and Emmett Utilities’ answer, as well as an
objection to the motion to stay. On March 8, 2004, Thorell filed a response to the motion to the
People’s motion to strike his motion, and Emmett Utilities filed a response to the People’s
motion to strike its answer. On April 26, 2004, the respondents filed a withdrawal of the motion
to stay the proceedings.
For the reasons stated below, the Board denies both motions for summary judgment, and
accepts the answer of Emmett Utilities. The Board will reserve ruling on Thorell’s motion to
dismiss until after the People have an opportunity to respond.
BACKGROUND
In the complaint, the People allege that the respondents violated Sections 12(a) and (f)
and 18(a)(2) of the Environmental Protection Act (415 ILCS 5/12(a) and (f) and 18(a)(2) (2002))
and 35 Ill. Adm. Code 601.101 and 607.103(c). The People further allege that the respondents
violated these provisions by (1) failing to protect the safety of a public water supply; (2) failing
to provide continuous operation and maintenance of a public water supply; (3) allowing
discharges of untreated effluent, raw sewage, and overflows into an unnamed tributary to the
LaMoine River; (4) causing offensive conditions, including unnatural color, odor, sludge, and
turbidity in the receiving stream; and (5) violating the conditions of National Pollutant Discharge
Elimination System permit number IL0071030. The complaint concerns the respondents’ public
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water supply and wastewater treatment facilities at Stratford West townhouse subdivision near
Macomb, McDonough County.
The Board accepted the complaint for hearing on November 20, 2003. On December 30,
2003, Thorell sent a letter to the People acknowledging receipt of the complaint and denying all
allegations. Specifically, Thorell states “I have read the allegations in the complaint. They are
absurd and simply not true; therefore, I deny all of them. The Company isn’t polluting anything
and the water is safe.” The parties then filed the pleadings as noted above.
PRELIMINARY MATTER
The respondents filed a motion to stay proceedings on February 10, 2004. The
complainant filed an objection to the motion for a stay on February 20, 2004. On April 26, 2004,
the respondents filed a withdrawal of the motion to stay the proceedings. The Board will allow
the motion to be withdrawn, will not stay this matter, and will not address the motion to stay or
the People’s response.
MOTIONS FOR SUMMARY JUDGMENT
The People filed motions for summary judgment against Emmitt Utilities and Thorell.
Both motions allege that no answer or responsive pleadings to the complaint have been filed and
that all material allegations are, therefore, admitted under Section 103.204(d). MSJ1 at 2; MSJ2
at 2.
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In both motions, the People assert that the December 30, 2003 letter cannot serve as an
answer.
The People contend that the December 30, 2003 letter cannot be an answer on behalf of
Thorell because it does not purport to specifically deny the material allegations of the compliant,
and because it fails to address and satisfy the procedural and substantive requirements. MSJ1 at
3. The People assert the letter cannot serve as an answer on behalf of Emmett Utilities because it
does not specifically deny the material allegations and because Thorell is not authorized to
appear on behalf of the company since he is not an attorney. MSJ2 at 3.
The People ask that a hearing for determination of an appropriate civil penalty be
scheduled.
THORELL’S MOTION TO DISMISS
1
The Board will cite to the People’s motion for summary judgment against Thorell as “MSJ1 at
__”; the People’s motion for summary judgment against Emmett Utilities will be cited as “MSJ2
at __”; Thorell’s motion to dismiss will be cited as “Mot. to Dismiss at __”; the People’s motion
to strike Thorell’s motion will be cited as “People’s Mot. to Strike Mot. at __”; the People’s
motion to strike Emmett Utilities answer will be cited as “People’s Mot. to Strike Ans. at __”;
Thorell’s response to the People’s motion to strike Thorell’s motion to dismiss will be cited as
“Thorell’s Resp. at __”; and Emmett Utilities’ response to the People’s motion to strike the
answer will be cited as “Emmett Utilities Resp. at __.”
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Thorell asserts that he is named as a respondent solely on the grounds that he is a
responsible corporate officer and that Illinois does not recognize a responsible corporate officer
doctrine. Mot. to Dismiss at 1-2. Thorell argues that the appellate court has rejected or at least
severely limited the doctrine. Mot. to Dismiss at 2, citing People v. Tang, 2004 Ill. App. LEXIS
74 (1st Dist. 2004). Thorell argues that the complaint merely alleges in a completely conclusory
fashion his involvement in the alleged violations and, as such, does not state a cause of action.
Mot. to Dismiss at 2.
PEOPLE’S MOTION TO STRIKE
THORELL’S MOTION TO DISMISS
The People assert that a draft complaint was provided Thorell’s counsel who
acknowledged receipt of the draft complaint in a reply dated October 13, 2003. People’s Mot. to
Strike Mot. at 2. The People assert that its efforts demonstrate not only formal compliance with
notification requirements, but also informal communications with counsel, and that both
corporate and individual respondents were fully aware of the enforcement proceeding.
Id
.
The People argue that Thorell’s motion to dismiss must be filed within 30 days after the
filing of the complaint unless the Board determines that material prejudice would result.
People’s Mot. to Strike Mot. at 2. The People contend that Thorell’s motion was untimely and
that Thorell failed to seek leave to file.
Id
. The People contend that Thorell has waived his
ability to attempt to demonstrate material prejudice and that the Board has no basis in the record
to entertain consideration of whether any prejudice might result and if so whether such prejudice
might be material.
Id
. The People ask for leave to object to Thorell’s motion to dismiss on
substantive grounds if the Board denies the motion strike.
PEOPLE’S MOTION TO STRIKE
EMMETT UTILITIES’ ANSWER
The People assert that a draft complaint was provided Emmett Utilities’ counsel who
acknowledged receipt of the draft complaint in a reply dated October 13, 2003. Mot. to Strike
Ans. at 2. The People assert that its efforts demonstrate not only formal compliance with
notification requirements, but also informal communications with counsel, and that both
corporate and individual respondents were fully aware of the enforcement proceeding.
Id
. The
People argue that Board procedural rules require an answer to be filed within 60 days after the
filing of the complaint, and that all material allegations will be taken as admitted if no answer is
filed.
Id
.
THORELL’S RESPONSE TO THE PEOPLE’S MOTION TO STRIKE
Thorell admits that copies of the complaint were served on him by the People, but asserts
that he did not seek counsel at the time and instead prepared a completely inadequate and
inartfully drafted response to the complaint and sent it to the Attorney General’s Office.
Thorell’s Resp. at 1. Thorell asserts that he was notified by an Administrative Law Judge in a
related proceeding that he could not represent the corporation Emmett Utilities, and should also
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seek counsel for himself.
Id
. Thorell asserts that once he obtained counsel, that counsel then
filed the appropriate responses to the complaint for Thorell and Emmett Utilities.
Id
.
Thorell argues that material prejudice will result if his motion to dismiss is not heard
because he has a serious and bona fide defense to the allegations against him. Thorell’s Resp. at
2. Thorell asserts that its counsel first became aware that the proceedings had been filed before
the Board just in advance of the January 16, 2004 status conference with the Board hearing
officer, that the counsel had previously only been provided a draft complaint and informed of the
likelihood of the filing of the complaint.
Id
. Thorell contends that its counsel was not favored
with an actual copy of the complaint when it was initially filed in November 2003.
Id
.
EMMETT UTILITIES’ RESPONSE TO THE PEOPLE’S MOTION TO STRIKE
Emmett Utilities argues that, as set forth more fully in Thorell’s response, it attempted to
answer the compliant on December 30, 2003, without the benefit of counsel. Emmett Utilities
Resp. at 1. Emmett Utilities asserts that in an order dated January 16, 2004, an administrative
law judge in a related proceeding ordered Thorell to consult with counsel because he could not
represent the corporation Emmett Utilities, and that thereafter counsel was obtained. Emmet
Utilities’ Resp. at 2. Emmett Utilities asserts that Thorell is over 70 years old, in ill health, that
he has limited funds, and his company is broke and losing money.
Id
. Emmett Utilities contends
that Thorell’s primary income is social security and that he can hardly afford an attorney.
Id
.
Emmett Utilities argues that his failure to comply with the rules should be excused.
Id
.
DISCUSSION
The motions for summary judgment are based on the respondents’ failure to timely file an
answer within 60 days after receiving the complaint. Generally, if the respondents fail within
that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form
a belief of, a material allegation in the complaint, the Board will consider the respondents to have
admitted the allegation.
See
35 Ill. Adm. Code 103.204(d).
As noted above, Thorell sent the People a letter denying the allegations of the complaint
on December 30, 2003. The respondents assert that this letter constitutes a timely response, even
if it was inadequate. The People argue that the letter cannot serve as an answer because it does
not purport to specifically deny the material allegations of the compliant, and further cannot
serve as an answer on behalf of Emmett Utilities because Thorell is not authorized to appear on
behalf of the company since he is not an attorney.
The Board regards Thorell’s letter denying the allegations of the complaint as an answer
sufficient for the purposes of Section 103.204(d). Although the letter was not timely filed with
the Board, it was sent to the People and given to the Board hearing officer within 60 days of the
filing of the complaint. Further, the letter does contain a denial of the allegations in the
complaint. While not a typical answer, the letter does put the People on notice that the
allegations in the complaint are being contested, and was followed by a complete answer by
Emmett Utilities and a motion attacking the sufficiency of the pleadings on February 10, 2004,
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after counsel was obtained. Accordingly, the Board denies the People’s motion to strike Emmett
Utilities’ answer, and the People’s motion for summary judgment against both respondents.
The Board next considers the People’s motion to strike Thorell’s motion to dismiss.
Although Thorell’s December 30, 2003 letter constitutes an answer, Thorell’s motion to dismiss
was still untimely filed pursuant to Board rules and cannot be accepted unless material prejudice
will result.
See
35 Ill. Adm. Code 101.506. The People argue that Thorell has waived his ability
to attempt to demonstrate material prejudice.
The Board may, of course, look at the record to determine whether or not material
prejudice will result if Thorell’s motion to strike is not accepted. In so doing, the Board finds
that material prejudice will result if Thorell’s motion is not heard. The motion is, therefore,
accepted and the People’s motion to strike is denied. However, the People have requested leave
to substantively object to Thorell’s motion to dismiss should the Board deny its motion to strike.
That request is granted, and the People are hereby given until May 21, 2004, to file a response to
Thorell’s motion to dismiss.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 6, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
