BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
TO :
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on Wednesday, April 5`h , 2006, we filed the attached
Metropolitan Water Reclamation District of Greater Chicago's Motion to Strike and Dismiss
Paragraphs 61 through 70 of Count II of FCWRD's Complaint or in the Alternative Motion for
Leave to Serve a Bill of Particulars with the office of the Clerk of the Illinois Pollution Control Board,
100 West Randolph Street, Suite
11-500 ;
Chicago, Illinois, a copy of which is herewith served'upon you .
METROPOLITAN WATER RECLAMATION
DISTRIC OF GREATER CHIC GO
Frederick M. Feldman/Alan J . Cook/Lisa Luhrs Draper
Metropolitan Water Reclamation District of Greater Chicago
100 East Erie Street
Chicago, IL
60611
(312) 751-6576
Frederick M. Feldman, Its Attorney
RECEIVED
CLERK'S OFFICE
FLA GG CREEK WA TER RECLAMATION
)
DISTRICT,
)
APR 0 5 2006
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
V.
)
PCB No. 2006-141
VILLAGE OF HINSDALE, METROPOLITAN
)
WATER RECLAMATION DISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY,
)
Respondents.
)
)
STATE OF ILLINOIS
)
S.
COUNTY OF COOK
)
SUBSCRIBED and SWORN to before
me this 5`h day of April, 2006 .
I
.,A~ I
.
V Ajr
CERTIFICATE OF SER VICE
I,0101wl
IX11
-S
, being duly sworn on oath, certify that I caused a copy of the attached
Respondent's Metropolitan Water Reclamation District of Greater Chicago's Motion to Strike and
Dismiss Paragraphs 61 through 70 of Count II of FCWRD's Complaint or in the Alternative
Motion for Leave to Serve a Bill of Particulars, to be sent via first class U .S. Mail to the attached
named individuals at their addresses as shown, with proper postage prepaid, from 100 E . Erie Street,
Chicago, Illinois, at or near the hour of 4:00 p.m., this 5`h day of April, 2006
.
(141f
LIJ1AL~o
OFFICIi4L SEAL
MARGARET TOONWAY
NotARYwaIC-STATE OF tUNOIS
MY COMMISSION EXPIRES : 12-07-06
THIS FILING IS SUBMITTED ON RECYCLED PAPER
For the Flagg Creek Water Reclamation District
:
Richard J. Kissel/Roy M. Harsch/John A. Simon
Gardner, Carton & Douglas, LLP
191 N. Wacker Drive- Suite 3700
Chicago, Illinois 60606
For the DuPage County, Division of Transp
. :
Joseph E. Birkett
DuPage County States Atty .
503 N. County Farm Road
Wheaton, Illinois 60187
Co-Counsel for the Village of Hinsdale
:
William D. Seith
Total Environmental Solutions, P .C .
635 Butterfield Rd., Suite 240
Oakbrook Terrace, Illinois 60181
Mark Steger, Esq .
Holland & Knight, LLC
131 S. Dearborn St.
30th Floor
Chicago, Illinois 60603
For the Illinois Pollution Control Board
:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago, Illinois 60601
SERVICE LIST
Flagg Creek Water Reclamation District v . Village of Hinsdale, et al .
For the Illinois Dept. of Transp . :
Richard Christopher, Esq .
Special Assistant Atty. General
111. Dept. of Transportation
300 W. Adams St. -
2nd
Fl.
Chicago, Illinois 60606
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RESPONDENT METROPOLITAN WATER RECLAMATION
DISTRICT OF GREATER CHICAGO'S MOTION TO STRIKE AND DISMISS
PARAGRAPHS 61 THROUGH 70 OF COUNT H OF FCWRD'S COMPLAINT
ORINTHE ALTERNATIVE MOTION FOR LEAVE TO SERVE A BILL OF PARTICULARS
Now comes the Respondent, Metropolitan Water Reclamation District of Greater Chicago
(hereinafter "MWRD" or "District"), through its Attorney, Frederick M . Feldman, and pursuant to 35 Ill
.
Adm. Code 101 .506 hereby submits its Motion to Strike and Dismiss Paragraphs 61 through 70 of Count
II or in the alternative moves for Leave to Serve a Bill of Particulars . In support thereof, the MWRD
states as follows :
INTRODUCTION
Complainant grounds the MWRD's alleged violations of the Illinois Environmental Protection Act
("Act") and Pollution Control Board Water Pollution Control Regulations on the MWRD's alleged breach
of its statutory duty to regulate stormwater in Cook County . The MWRD respectfully asserts that the
Illinois Pollution Control Board ("Board") does not have the authority to decide whether the MWRD has
violated its statutory duty to regulate stormwater and accordingly those allegations should be dismissed as
frivolous. Additionally, the MWRD further contends that the allegations claiming a violation of
MWRD's statutory duty are so lacking in details as to be impossible to answer . Finally, should this Board
RECEIVE-:113
CLERK'S
OFFICE
FLAGG CREEK WATER RECLAMATION
)
APR p
2006
DISTRICT,
)
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
v.
)
PCB No. 2006-141
VILLAGE OF HINSDALE, METROPOLITAN
)
WATER RECLAMATION DISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY.
)
Respondents.
)
)
find that the Complainant has not adequately identified the specific statutory provision breached by the
MWRD, the District alternatively moves for leave to serve a Bill of Particulars
.
BACKGROUND
1 . On March 3, 2006, Flagg Creek Water Reclamation District (hereinafter "FCWRD") filed a
multi-count complaint against various governmental entities, including the MWRD, alleging that the
respondents' acts or omissions are causing FCWRD to be in noncompliance with the terms and conditions
of its NPDES permit and with certain combined sewer overflow ("CSO")
guidelines. Count II of the
complaint is directed against the MWRD . (A copy of the Complaint is attached as Exhibit
2. FCWRD's complaint against the MWRD includes the allegation that the MWRD is in
violation of its statutory duty to regulate stormwater in Cook County . Complaint ("Cmplt.") Ex. A at ¶'s
61-70. FCWRD pleads that MWRD's failure to properly manage stormwater, in turn, interferes with
FCWRD's fulfillment of its duty to provide capacity for sanitary flows . Cmplt., ¶70 .
3. The allegations pertinent to MWRD's alleged breach of its statutory duty regarding
stormwater are found at paragraphs 61 through 70 of Count II . In sum, they state as follows : MWRD is
authorized by statute to regulate stormwater within Cook County, Cmplt . ¶63; MWRD levies taxes on
residents within Cook County pursuant to that statutory authority, Cmplt. ¶63; MWRD has allowed debris
to collect in Flagg Creek causing stormwater to backup into FCWRD's polishing ponds, Cmplt. ¶'s 64-65 ;
MWRD has a duty by statute to maintain Flagg Creek, Cmplt . ¶66; MWRD has breached its statutory
duty, Cmplt. ¶67; and, that MWRD'S breach of its statutory duty is a violation of the Act's prohibition on
causing or contributing to water pollution under 415 ILCS 5/12(a) and 35 Ill . Adm. Code 307.1101,
which prohibits any person from introducing pollutants that interfere with the operation of a sewage
treatment plant. Cmplt. ¶'s 68-69 .
4. Notably, FCWRD does not identify the specific Illinois statutory provision regarding
stormwater regulation that it claims was breached by the MWRD . However, typically, the MWRD's
statutory duty arises pursuant to its enabling statute. (70 ILCS 2605
et seq .)
The MWRD Act was
'
Counts I, III, and IV are directed to the other named respondents and the District therefore makes no response thereto
.
recently amended by adding Section 7h giving the District additional duties for the management of
stormwater, defined as the management of floods and floodwaters . See 70 ILCS 2605/7h
.
DISCUSSION
A .
The Board Lacks Authority to Decide a Breach of the MWRD Act
.
5. An examination of the pertinent allegations leaves no room for doubt that the MWRD's
alleged violations of the Act, and the Board's water pollution control regulations are premised on the
MWRD's breach of its statutory duty to manage stormwater in Cook County . Thus, in order for the Board
to find the MWRD in violation of Section 12(a) of the Act and 35 Ill. Adm. Code 307.1101, it must first
find that "MWRD has a duty by statute . .. to maintain Flagg Creek so that stormwater is not obstructed in
the Creek," Cmplt. ¶66; and further that, "MWRD has breached its statutory duty ." Cmplt. 167 .
6. The Act confers upon the Board the power to adjudicate complaints that allege violations of
the Act or of Board regulations. 415 ILCS 5/5(d) and 5/30-5/33 . However, it is well established that the
Board's authority is limited to the terms of its enabling statute
.
Concerned Adjoining Owners v. Pollution
Control Board,
288 III. App . 3d 565 (5 t° Dist. 1997). In that case, citizen groups argued that the City of
Salem did not follow the statutory requirements of the Illinois Municipal Code when annexing property
for proposed landfills .
Concerned Adjoining Owners,
288 Ill. App. 3d at 577. The Board found that it did
not have the authority to decide whether the annexation and purchase of the property was conducted
according to the applicable statutes, as its authority is `limited to those matters arising under the Act
.'
Id.
Thus, the Board declined to decide the issue . (See
T.O.T.A.L. v. City of Salem,
PCB No. 96-79
(Consolidated) March 7, 1996 Order, at p . 5). The appellate court affirmed the Board regarding the
Board's lack of authority. The court stated, "the Board was also correct in finding that it did not have any
authority to decide the issue of whether Salem complied with the Municipal Code in purchasing and
annexing the property. The Board's authority is limited to the terms of its enabling statute, which does
not extend to matters arising under the Municipal Code ."
Id.
Applying the court's reasoning to the instant
matter, it follows that the Board's authority does not extend to matters arising under the MWRD's
enabling statute, assuming that this is the basis of "statutory duty" alleged by Complainant
.
See also,
Material Service Corporation v. J. W. Peters & Sons, Inc., PCB
No. 98-97 where the
Board dismissed a complaint as frivolous . In
Material Service Corp.,
the Board held that it did not have
jurisdiction to determine whether the respondent was in violation of the Act, when, in order to do so, it
first had to find violations of the Gasoline Storage Act and regulations promulgated thereunder . The
Board, finding that it did not have jurisdiction to adjudicate violations of the Gasoline Storage Act,
dismissed the complaint. See April 2, 1998 Order, at p . 6. Similarly, in the case at hand, the Board does
not have jurisdiction to determine whether the MWRD is in violation of the recently-enacted Stormwater
Management Act. Accordingly, paragraphs 61-70 of the complaint, which appear to allege violations of
the MWRD Act, must be stricken for lack of jurisdiction
.
B.
The Allegations are not Sufficiently Pled .
7. Additionally, paragraphs 61 through 70 of the Complaint are so wanting in details that the
District cannot adequately prepare a response to them . The Illinois Environmental Protection Act clearly
provides that any person who files a complaint must plead with specificity the manner and extent of any
alleged violations. 415 ILCS 5/31 (c)(1) and (d)(1) . The Board's procedural rules further require that the
complaint contain the dates, location, events, extent, duration and strength of discharges or emissions and
consequences thereof that constitute a violation . 35 Ill. Adm. Code 103.204 (c) (2) . Moreover, Illinois
case law affirms the necessary pleading requirements . City
of DesPlaines v. Metropolitan Sanitary
District of Greater Chicago,
60 Ill. App. 3d 995, 1000 (1s` Dist. 1978)(allegations must state dates, events,
the nature and extent and duration of the threats to the environment to satisfy the Act and Board's
procedural rules)
.
8. Here, the challenged allegations are entirely lacking in the basic details of the alleged
violations. The allegations fail to identify a single date of occurrence (or even a year!), or provide a
description of the extent and nature of the accumulation of debris, the location in Flagg Creek where said
accumulation occurred, or the dates, extent and duration of the claimed backup into FCWRD's polishing
ponds. Without describing the dates, location, events, extent or duration of any purported occurrences, the
Complaint does not provide adequate information to allow the MWRD to respond to these allegations
.
This general pleading fails to satisfy the aforestated statutory and administrative regulations and in
consequence the MWRD submits that the allegations are fatally flawed and should be stricken
.
C
.
Alternatively FCWRD Should Provide a Bill of Particulars
.
9 .
In the alternative, should this Board find that it cannot rule on the jurisdiction question without
identification by FCWRD of the specific Illinois statute breached by MWRD, the MWRD moves for
leave to serve a Bill of Particulars . Though the Board's procedural rules do not contain a provision for a
motion for a Bill of Particulars, both the Board's procedural rules and Board decisions have recognized
the applicability of Section
5/2-607
of the Illinois Code of Civil Procedure regarding the purposes of a
Bill of Particulars. See
35 Ill .
Adm. Code 101 .100 (b); E.g.,
T.O.T.A.L. v. City of Salem,
PCB No .
96-79,
Dec .
7, 1995
Order, at
p . 2
.
FCWRD should be required to articulate the specific statutory provisions
regarding the regulation of stormwater in Cook County that affect MWRD to aid the Board in its
examination of the jurisdictional question and to allow the MWRD to adequately respond to the
complaint .
CONCLUSION
The District respectfully requests the Board strike and dismiss paragraphs
61
through
70
of Count
II. The Board cannot grant the relief Complainant seeks under these paragraphs without first making a
determination that the District has a statutory duty under Illinois law to maintain Flagg Creek and has
violated that statutory duty . The District respectfully asserts that the Board does not have authority to
make these determinations and accordingly it moves that Paragraphs
61
through
70
of Count II of
FCWRD's complaint be dismissed as frivolous . Additionally, the District moves that these paragraphs be
stricken as they are so wanting in details as to be impossible to answer.
Alternatively, if FCWRD's failure to cite the specific statutory provision allegedly breached by the
District precludes the Board from entering a finding that it lacks authority, the District moves for leave to
serve a Bill of Particulars requesting that Complainant identify the particular Illinois statute regarding
stormwater regulation, under which FCWRD claims the District has committed a statutory violation
.
Respectfully submitted,
Metropolitan Water Reclamation District
of Greater Chicago
Frederick M. Feldman, Attorney
Frederick M. Feldman/Lisa Luhrs Draper
Metropolitan Water Reclamation District
100 East Erie Street
Chicago, Illinois
60611
(312)751-6576
THIS FILING IS SUBMITTED ON RECYLED PAPER
Complaint
Jurisdiction
I .
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 ILCD 5131(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 .
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 .
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
EXHIBIT
I
A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
)
DISTRICT
)
Complainant
)
v .
)
VILLAGE OF HINSDALE, METROPOLITAN
)
WATER RECLAMATION DISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY
)
Respondents.
)
PCB 06-
that conveys wastewater to both the Metropolitan Water Reclamation District of Greater Chicago
(MWRD) and the FCWRD
.
4.
The 'Illinois Department of Transportation (IDOT) is a state agency created by the
Department of Transportation Law, 20 ILLS 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.
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 .
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
.
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 .
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 both wet
weather and dry weather .
The Flagg Creek Water Reclamation District System
9.
The FCWRD wastewater treatment plant (W WTP) 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 .
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 W WTP. This interceptor is known as the "Mainline Interceptor ." See
Figure 1 .
11 .
FCWRD also has a 60-inch interceptor ("West 60-Inch Interceptor") that runs
south along 1-294 and collects flows from three other interceptors : the 55ei Street Interceptor,
running west along 55'" Street; the 59a Street Interceptor, running south along 59'" Street ; and
the 63 Street Interceptor, running south along 63' h Street See Figure 1 .
12 .
FCWRD's other main interceptor is the Storm Water Pollution Control ("SWPC")
Interceptor which runs from its Spinning Wheel Pumping station south along 1-294 .
2
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 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 .
14 .
To comply with the order directed to it, FCWRD constructed the Spinning Wheel
Pumping Station and installed a new sixty inch interceptor, the Storm Water Pollution Control
Interceptor, along Interstate 294 (SWPC Interceptor) . See Figure 1
.
15 .
The Spinning Wheel Pumping Station and SWPC Interceptor were generally
intended to serve three purposes : to serve a new northern service area, to catch overflows from
the FCWRD's existing forty two inch interceptor, and to temporarily provide relief to Hinsdale's
CSOs until Hinsdale could separate its sewers in accordance with the Sanitary Water Board's
order .
16 .
The pumping capacity of the Spinning Wheel Pumping Station is greater than the
capacity of the SWPC 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 SWPC Interceptor and create hydraulic obstructions and overflows in other interceptors
.
17 .
FCWRD has an NPDES Permit, No. 1L0022586, which allows one CSO
discharge point for excess flows from its W WTP. Standard Condition Number 26 of the
District's NPDES permit prohibits CSOs at any other points
.
18 .
FCWRD's Ordinance, which has been in place since 1931, revised in 1961 and
1980, prohibits combined sewer systems within its service area.
19 .
The unpermitted CSO events that occur in the FCWRD system do not comply
with the CSO Control Policy, issued by the United States Environmental Protection Agency on
April 19, 1994 (59 FR 18688), or state regulations governing CSOs found at 35 11. Adm. Code
Part 306, Subpart C .
20.
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
.
21 .
FCWRD cannot comply with the terms and conditions of its NPDES permit and
the CSO policy without the cooperation and corrective actions of Hinsdale, MWRD, MOT and
DDOT in eliminating wet weather flows from the FCWRD system
.
Count I :
The Village of Hinsdale
22 .
Hinsdale owns and operates a combined sewer system, and collects fees from
certain residents for its ownership and operation of the combined sewer system
.
23
.
Hinsdale's combined sewer system allows stormwater drainage from streets and
public and private property during storm events to combine directly with sanitary waste flows
.
3
24 .
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 .
25 .
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 .
26 .
On information and belief, there is at least one additional unknown sewer
connection along FCWRD's Mainline Interceptor from Hinsdale .
27 .
Hinsdale holds an NPDES permit, No. IL0066818, granted by the IIllinois
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.
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
.
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
.
30 .
Because the MWRD sewer system has flow restrictors in its junction chambers
where flows from Hinsdale arc directed to the MWRD's sewer system, FCWRD receives all of
the wet weather flows from Hinsdale.
31 .
The large volume of wet weather flows from Hinsdale, combined with the short
travel time, surcharges FCWRD interceptors . The Mainline Interceptor and its SWPC
Interceptor are most affected, which in turn results in overflows upstream and downstream of
where Hinsdale sewers discharge to the FCWRD's interceptor
.
32 .
The large volume of wet weather flows from Hinsdale cause both Hinsdale and
the FCWRD to experience unauthorized CSOs within their respective systems .
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 .
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
.
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
.
36 .
Hinsdale is in violation of FCWRD's ordinance prohibiting combined sewers to
discharge to the FCWRD sewer system
4
37 .
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
.
38 .
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.
39 .
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.
40 .
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, FCWRD's
ordinance prohibiting wet weather flows, the Combined Sewer Overflow Control Policy issued
by U.S. EPA, and Illinois regulations governing CSOs, found at 35 Il . Adm. Code Part 306,
Subpart C .
41 .
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).
42.
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)
.
43 .
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 .
44 .
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
.
45
.
By failing to operate its leaf collection program to prevent leaves and stormwater
from entering the FCWRD system, Hinsdale is in violation of the nine minimum controls
required by the U.S. EPA's Combined Sewer Overflow Policy, and the FCWRD's ordinance
.
46 .
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 5/12(a) .
5
47 .
By failing to operate its leaf collection program to prevent leaves from entering
the FCWRD system, the Combined Sewer Overflow Control Policy issued by U .S. EPA, and
Illinois regulations governing CSOs, found at 35 11 . Adm. Code Part 306, Subpart C
.
48
.
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)
.
49.
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 Ii . Adm. Code 307.1101,
prohibiting any person from introducing pollutants that interfere with the operation and
performance of FCWRD
.
Count II:
Metropolitan Water Reclamation District
50 .
FCWRD has historically served an area in Cook County that was placed under the
jurisdiction of the MWRD in the 1970s .
51 .
Service to these areas in Cook County continues to be provided by FCWRD
C'FCWRD-served area") .
52.
FCWRD has a draft agreement with MWRD that has not been executed, which
requires MWRD to provide service to a roughly equivalent area in DuPage County that is within
the FCWRD's statutory authority ("MWRD-served area")
.
53
.
FCWRD's sewer system accepts the dry weather and wet weather flows from the
FCWRD-served area.
54 .
The MWRD sewer system has flow restrictors in its junction chambers where
flows from Hinsdale are directed to the MWRD's sewer system .
55 .
On information and belief, the diversion structures cause a substantial amount of
flow from the MWRD-served area to be blocked from entering the MWRD's sewer system
.
56 .
On information and belief, those flows then make their way to the FCWRD sewer
system.
57 .
On information and belief, the MWRD interceptor that receives the flows from
the MWRD-served area has capacity that is not being used
.
58 .
MWRD's diversion of flows from the MWRD-served area, combined with wet
weather flows from the FCWRD-served area, cause or contribute to unauthorized CSOs within
FCWRD's system, in violation of MWRD's NPDES permit, FCWRD's ordinance prohibiting
wet weather flows, the Combined Sewer Overflow Control Policy issued by U.S. EPA, and
Illinois regulations governing CSOs, found at 3511. Adm. Code Part 306, Subpart C
.
6
59.
By diverting flows from the MWRD-served area to FCWRD, MWRD 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 5/12(a) .
60.
By diverting flows from the MWRD-served area to FCWRD, MWRD is in
violation of the Board rule at 35 I1. Adm. Code 307.1101, prohibiting any person from
introducing pollutants that interfere with the operation and performance of FCWRD .
61 .
MWRD's diversion of flows from the MWRD-served area, combined with wet
weather flows from the FCWRD-served area, interfere with FCWRD's fulfillment of its statutory
duty to provide capacity for sanitary flows from existing and new residents within its service
area.
62 .
MWRD is also authorized by statute to regulate stormwater within Cook County
.
63
.
Pursuant to that authority, MWRD levies taxes on residents within Cook County,
including residents within FCWRD, to ensure stormwater is appropriately managed and does not
obstruct sewers and streams
.
64 .
Stormwater that flows into Flagg Creek is obstructed by dead trees and other
detritus and does not flow downstream
.
65 .
During high flow events, the stormwater backs up into FCWRD's polishing pond,
interfering with the pond's ability to polish the effluent from FCWRD and acting as a pollutant
to FCWRD's pond.
66 .
MWRD has a duty by statute and its collection of taxes within the FCWRD
service area to maintain Flagg Creek so that stormwater is not obstructed in the Creek
.
67 .
MWRD has breached its statutory duty .
68 .
MWRD's breach of its statutory duty is a 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 5/12(a) .
69.
MWRD's breach of its statutory duty 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 .
70.
MWRD's breach of its statutory duty interferes with FCWRD's fulfillment of its
statutory duty to provide capacity for sanitary flows from existing and new residents within its
service area.
Count III :
Illinois Department of Transportation
71
.
The Illinois Department of Transportation {IDOT) has jurisdiction over a part of
55th Street east of County Line Road, and is responsible for its operation, repair and
maintenance.
7
72 .
55th Street was originally constructed as a two-lane roadway, but MOT expanded
55th Street cast of County Line Road to a four-lane roadway and added curbs
.
73
.
By expanding 55 th Street and adding curbs, MOT has substantially increased the
amount of stormwater that is conveyed to the FCWRD .
74 .
The wet weather flows from 55 th Street contribute to the unauthorized CSOs
within FCWRD's system .
75
.
The wet weather flows from 55th Street interfere with the effective operation of
FCWRD's wastewater treatment facility
.
76 .
The wet weather flows from 55 th Street interfere with FCWRD's ability to allow
capacity for wastewater from existing and new residents within its service area
.
77 .
By failing to provide for wet weather flows from 55 th Street, MOT is causing or
contributing to unauthorized CSOs within FCWRD's system, in violation of FCWRD's
ordinance prohibiting wet weather flows and Illinois regulations governing CSOs, found at 3511
.
Adm. Code Part 306, Subpart C
.
78 .
By failing to provide for wet weather flows from 55 th Street, MOT 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 5/12(a)
.
79
.
By failing to provide for wet weather flows from 55 th Street, MOT is in violation
of the Board rule at 35 II. Adm. Code 307.1101, prohibiting any person from introducing
pollutants that interfere with the operation and performance of FCWRD .
80. DOT's wet weather flows from 55"' Street interfere with FCWRD's fulfillment
of its statutory duty to provide capacity for sanitary flows from existing and new residents within
its service area.
Count IV:
DuPage Department of Transportation
81 .
DDOT has jurisdiction over part of 55 th Street west of County Line Road, and is
responsible for its operation, repair and maintenance
.
82 .
55th Street was originally constructed as a two-lane roadway, but DDOT
expanded 55th Street west of County Line Road to a four-lane roadway and added curbs.
83 .
MOT has installed storm sewers on certain segments of 55 th Street, but has not
installed storm sewers to accept the runoff from all of 55" Street
84 .
In segments of 55 th Street where no storm sewers are present, stormwater runoff
enters the FCWRD's system through the 55 th Street Interceptor .
85 .
The wet weather flows from 55 th Street contribute to the unauthorized CSOs
within FCWRD's system
.
8
86.
The wet weather flows from 55`" Street interfere with the effective operation of
FCWRD's wastewater treatment facility
.
87
.
The wet weather flows from 55 0i Street interfere with FCWRD's ability to allow
capacity for wastewater from existing and new residents within its service area
.
88 .
By failing to provide for wet weather flows from 55
0, Street, DDOT is causing or
contributing to unauthorized CSOs within FC WRD's system, in violation of FC WRD's
ordinance prohibiting wet weather flows and Illinois regulations governing CSOs, found at 35 Il
.
Adm. Code Part 306, Subpart C
.
89.
By failing to provide for wet weather flows from 55
0i Street, DDOT is causing or
contributing to unauthorized CSOs within FCWRD's system, 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 ILLS 5/12(a) .
90 .
By failing to provide for wet weather flows from 55 0i Street, DDOT is in violation
of the Board rule at 35 R. Adm. Code 307.1101, prohibiting any person from introducing
pollutants that interfere with the operation and performance of FCWRD
.
91 .
DDOT's wet weather flows from 55'" Street interfere with FCWRD's fulfillment
of its statutory duty to provide capacity for sanitary flows from existing and new residents within
its service area.
Relief Requested
WHEREFORE, for all of the foregoing reasons, FRCWRD requestss that the Illinois
Pollution Control Board
:
A.
Issue an order directing Hinsdale to comply with the direction of the Sanitary
Water Board requiring Hinsdale to separate its combined sewer ;
B.
Issue an order directing Hinsdale to comply with the FCWRD's ordinance
prohibiting combined sewers ;
C.
Issue an order directing Hinsdale to comply with the Act, Board regulations and
the CSO Control Policy, and stop the storm water flows and large leaf load from
entering FCWRD's sewers ;
D .
Issue an order directing Hinsdale, MWRD, MOT and DDOT to address their wet
weather flows, and stop the storm water flows from entering FCWRD's sewers
;
and
E.
Grant any other additional relief which fully and completely rectifies the
violations complained of herein .
9
Dated: March 3, 2006
GARDNER CARTON & DOUGLAS LLP
Richard J. Kissel
Roy M. Harsch
John A. Simon
Gardner Carton & Douglas LLP
191 North Wacker Drive
Suite 3700
Chicago, Illinois 60606
CHO2/22408025 .1
10
FLAGG CREEK WATER
RECLAMATION DJSTRICT
By:
