BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
)
DISTRICT
)
)
Complainant
)
)
PCB 06-141
v.
)
)
VILLAGE OF HINSDALE, METROPOLITAN
)
WATER RECLAMATION DISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY
)
Respondents.
)
NOTICE OF FILING
To:
PERSONS ON ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have filed electronically today with the Office of the
Clerk of the Illinois Pollution Control Board, 100 West Randolph Street, Suite 11-500, Chicago,
Illinois, Flagg Creek’s Response In Opposition to MWRD’s Motion to Dismiss Paragraphs 61 –
70, Or Alternatively for Leave to Serve A Bill of Particulars, a copy of which is herewith served
upon you.
Respectfully submitted,
/s/ John A. Simon
CERTIFICATE OF SERVICE
I, John A. Simon, an attorney, certify that I sent a copy of the foregoing Flagg Creek’s Response
In Opposition to MWRD’s Motion to Dismiss Paragraphs 61 – 70, Or Alternatively for Leave to
Serve A Bill of Particulars by U.S. Mail and/or E-mail to the parties on the attached Service List
on this 19
th
of April, 2006.
/s/ John A. Simon
Richard J. Kissel
Roy M. Harsch
John A. Simon
Gardner Carton & Douglas LLP
191 North Wacker Drive, Suite 3700
Chicago, Illinois 60606
Dated: April 19, 2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CH02/ 22440683.1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 19, 2006
CH01/ 12465050.1
SERVICE LIST
Flagg Creek Water Reclamation District v. Village of Hinsdale, et al.
Richard Christopher, Esq.
Special Assistant Attorney General
Illinois Department of Transportation
300 W. Adams, 2
nd
Floor
Chicago, IL 60606
Phone: (312) 793-4837
Fax:
(312) 793-4974
Email: christopherra@dot.il.gov
For the Illinois Department of Transportation
Robert E. Douglas
Assistant State’s Attorney
DuPage County State’s Attorney’s Office
505 N. County Farm Road
Wheaton, IL 60187
Phone: (630) 407-8205
For the DuPage County, Division of
Transportation
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
Phone: (312) 814-8917
Email: hallorab@ipcb.state.il.us
IPCB Hearing Officer
Frederick M. Feldman, Esq.
Alan J. Cook, Esq.
Lisa Luhrs Draper, Esq.
Metropolitan Water Reclamation District of
Greater Chicago
100 East Erie Street
Chicago, IL 60611-3154
Phone: (312) 751-6576
For the Metropolitan Water Reclamation District
of Greater Chicago
William D. Seith, Esq.
Total Environmental Solutions
635 Butterfield Road, Suite 240
Oakbrook Terrace, IL 60181
Email: wdseith@tespc.com
Mark Burkland, Esq.
Holland & Knight, LLC
131 S. Dearborn Street, 30
th
Floor
Chicago, IL 60603
Phone: (312) 578-6557
Email: mark.burkland@hklaw.com
For the Village of Hinsdale
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 19, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
)
DISTRICT
)
)
Complainant
)
)
PCB 06-141
v.
)
)
VILLAGE OF HINSDALE, METROPOLITAN
)
WATER RECLAMATION DISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY
)
Respondents.
)
FLAGG CREEK’S RESPONSE IN OPPOSITION
TO MWRD’S MOTION TO DISMISS PARAGRAPHS 61-70
OR ALTERNATIVELY, FOR LEAVE TO SERVE A BILL OF PARTICULARS
Complainant, Flagg Creek Water Reclamation District (“FCWRD”) through its attorneys,
Gardner, Carton & Douglas LLP, pursuant to 35 Ill. Adm. Code 101.500(d), responds in
opposition to the April 5, 2006 Motion to Strike and Dismiss Paragraphs 61 through 70 of Count
II, or in the Alternative, for Leave to Serve a Bill of Particulars, filed by the Metropolitan Water
Reclamation District of Greater Chicago (“MWRD”) as follows:
INTRODUCTION
The Board is the proper venue to hear the evidence and craft an order comprehensively
addressing the violations of the Illinois Environmental Protection Act (“Act”) and Board
regulations alleged in the Complaint. Indeed, in order to fulfill its mandate under the Act, the
Board must consider and evaluate the statutory responsibility and authority of MWRD, and for
that matter each Party to this action, both in terms of ascertaining whether any violation of the
Act has been demonstrated and, also for purposes of crafting an appropriate order and remedy in
the event it does find such a violation. The Complaint, including specifically Paragraphs 61-70,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 19, 2006
2
are factually sufficient under the Board pleading rules. A Bill of Particulars is unnecessary in
view of the broad discovery provided by the Board procedural rules which are better suited for
developing the evidence in this proceeding.
ARGUMENT
A.
The Board Has Authority To Determine If MWRD Is In Violation of the Illinois
Environmental Protection Act and Board Regulations.
MWRD concedes that: “[t]he Act confers upon the Board the power to adjudicate
complaints that allege violations of the Act or Board regulations. 415 ILCS 5/5(d) and 5/30 –
5/33.” MWRD Motion ¶6. MWRD further concedes that Paragraphs 68 and 69 of the
Complaint allege MWRD’s violation of 415 ILCS 5/12(a) and 35 Ill. Adm. 307.1101. MWRD
Motion ¶3. These concessions taken together with the factual allegations of the Complaint are
sufficient to establish the Board’s jurisdiction over Paragraph 61 – 70 of the Complaint. 415
ILCS 5/5(d).
The proposition advanced by MWRD, that the Board loses its authority over matters
arising under the Act in any circumstance where an alleged violation of the Act also involves an
alleged violation of another statute, is not supported by the language of the Act or case law.
Section 5(d) of the Act which confers authority upon the Board: “to conduct proceedings upon
complaints charging violations of this Act, any rule or regulation adopted under this Act, . . . .”
does not contain language limiting this grant of authority to divest the Board of authority in any
case in which construing another statute is necessary to enforce the Act, as urged by MWRD.
Had the General Assembly intended to limit the Board’s authority in such a manner as advocated
by MWRD, the Legislature would have included such limiting language in the Act. For
example, the Legislature could have written Section 5(d) to read:
The Board shall have authority to conduct proceedings upon
complaints charging violations of this Act, any role or regulation
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 19, 2006
3
adopted under this Act, [
provided however in no event may the
Board construe another statute or regulation in connection with its
deliberations regarding violations of this Act
] . . . .
Of course, the Legislature did not include any such limiting proviso in Section 5(d) and neither
should this Board. Indeed, such a limitation would impede the Board from effectively
accomplishing its mandate and from achieving the purposes of the Act.
In
A.E. Staley Manufacturing Company v. Environmental Protection Agency
, 8 Ill. App.
3d 1018, 290 N.E. 2d 892 (4
th
Dist. 1972), the court rejected as “unduly restrictive” plaintiffs
attempt to limit the Board’s authority over any aspect of its sewer which authority was expressly
delegated to the City of Decatur under the Municipal Code.
Id
. at 1021. While acknowledging
that administrative agencies are limited to the powers vested in them by statute, the
A.E. Staley
court noted: “A corollary of this proposition also is that where there is an express grant of
authority, there is likewise the clear and express grant of power to do all that is reasonably
necessary to execute the power or perform the duty specifically conferred.”
Id
. at 1023. In
A.E.
Staley
, the court recognized that petitioner’s sewer discharged into the Decatur Sanitary District
operated under authority delegated by the Municipal Code. Nevertheless, the “realistic and
practical nexus” between petitioner’s discharge into the Decatur sanitary sewers and the
discharge from the Decatur Sanitary District into the waters of the State, was sufficient to give
the Board authority to exercise some supervision over petitioner’s sewer. “Thus the control of
the Pollution Control Board over petitioner’s sewer is only to the extent reasonably required to
effectuate the purposes of the Act.”
Id
. at 1021.
In this case, “the realistic and practical nexus” between MWRD’s failure to properly
manage stormwater in Flagg Creek downstream from FCWRD’s polishing pond, and the
violations of the Act and Board regulations alleged in the Complaint, is sufficient to give the
Board authority to exercise some supervision over MWRD’s management of stormwater
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4
downstream from FCWRD. Drawing upon the corollary to an express grant of authority noted in
A.E. Staley
, it is apparent that the express grant of authority to the Board to conduct proceedings
upon complaints charging violations of the Act, grants to the Board the power to exercise
supervision over the MWRD “only to the extent reasonably required to effectuate the purposes of
the Act” notwithstanding the separate delegation to MWRD over stormwater management in
Cook County in the MWRD Act.
A.E. Staley
presented the issue this way:
It is, of course, obvious that the Act is designed to control pollution
irrespective of its source. The issue here then is whether or not it
is reasonably required that the Pollution Control Board exercise
some supervision over the sewers of the plaintiff in order to
perform the duties imposed upon it by the legislature in the
Environmental
Control
Act.
If
the
petitioner
is
adequately
removing the contaminants released through its sewers so that it is
adequately treated and no pollution gets into waters of the state,
petitioner has no problem. We cannot assume that it will be
unreasonably or arbitrarily treated by the Board.
A.E. Staley,
8 Ill.App. 3d at 1023. Likewise in this case, the issue here is whether or not it is
reasonably
required
that
the
Board
exercise
some
supervision
over
MWRD
stormwater
management of Flagg Creek downstream from FCWRD’s treatment works, in order to perform
the duties imposed upon it by the legislature in the Environmental Control Act. If MWRD can
demonstrate that it is adequately removing dead trees and other detritus from Flagg Creek so that
it does not back up into FCWRD’s polishing pond in high flow events, MWRD has no problem.
Nor should MWRD assume that it will be unreasonably or arbitrarily treated by the Board.
The case cited by MWRD,
Concerned Adjoining Owners v. Pollution Control Board
, 288
Ill.App. 3d 565 (5
th
Dist. 1997), does not stand for a limitation on the Board’s authority to
conduct proceedings upon complaints, such as FCWRD’s, charging violations of the Act. The
Concerned Adjoining Owners
court merely concurred with the Board’s determination that
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5
whether the City of Salem followed the statutory requirements of the Illinois Municipal Code
when
purchasing
and
annexing
property,
was
not
a
matter
arising
under
the
[Illinois
Environmental Protection] Act.
Id
. at 577. In other words, compliance or noncompliance with
statutory requirements for purchasing and annexing property did not threaten or cause pollution.
In contrast, FCWRD’s claim against MWRD in Paragraphs 61-70 of the Complaint arises under
the Act as MWRD’s failure to properly manage stormwater in Flagg Creek has caused water
pollution in violation of Section 12(a) of the Act, and has interfered with the operation of Flagg
Creek’s polishing pond in violation of Board Rule at 35 Ill. Adm. Code 307.1101.
In
Material Service Corporation v. J.W. Peters & Sons, Inc.,
PCB No. 98-92, 1998 WL
166017 (Ill. Pol. Control Bd.), also cited by MWRD, the matters alleged in the complaint did not
arise under the Act. While the complaint in
Material Service Corporation
did cite Section
57.1(a) of the Act, the Board noted that: “Section 57.1(a) does not require Peters to remove the
tanks. It requires only that if the USTs are to be removed, they be removed in accordance of the
LUST program.”
Id.
at *2. Thus, the cited section of the Act had no application to the facts
alleged in the complaint and the matter did not arise under the Act. Unlike the circumstance in
Material Service Corporation,
threatening or creating water pollution as alleged by FCWRD, is a
violation of the Act, and acts and omissions interfering with the operation of FCWRD’s
treatment works is a violation of Boards regulations.
B.
The Allegations of the Complaint Are Factually Sufficient
The Complaint, including Paragraphs 61-70, is not factually deficient and complies with
the pleading requirements of Board Rule 103.204(c). The Complaint: 1) references the
provision of the Act (12(a)) and regulations (307.1101) that MWRD is alleged to be violating;
2) contains the dates (high flow events), location (Flagg Creek downstream from FCWRD’s
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 19, 2006
6
polishing pond), events (obstruction of stormwater flow downstream) and consequences alleged
to constitute violations of the Act and regulations (causing or contributing to water pollution and
introducing pollutants that interfere with the operation and performance of FCWRD; and
3) contains a concise statement of the relief that the complainant seeks. 35 Ill.
Adm.
Code 103.204.
In
People ex rel. Fahner v. Carriage Way West, Inc.
, 88 Ill.2d 300, 308, 430 N.E.2d 1005
(1981), the Illinois Supreme Court explained the difference between pleading “ultimate facts”
required by Illinois’ Code of Civil Procedure, and “evidentiary facts” not required to be pled in a
Complaint but which are developed in discovery and at trial. “But it is a rule of pleading long
established, that a pleader is not required to set out his evidence. To the contrary, only the
ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such
ultimate facts.”
Id.
quoting
Board of Education v. Kankakee Federation of Teachers Local
No. 886
(1970), 46 Ill.2d 439, 446-47, N.E.2d 18.
1
Paragraphs 61-70 plead the ultimate facts
which, if proved, establish violations of the Act and Board Rule. Paragraphs 62 and 63 allege
MWRD’s authority and responsibility to regulate and manage stormwater in Cook County to
ensure that it does not obstruct sewers and streams as well as the fact that MWRD has levied
taxes
under
this
authority
for
this
purpose,
including
upon
residents
within
FCWRD.
Paragraph 64 alleges that stormwater that flows into Flagg Creek is obstructed by dead trees and
other detritus and does not flow downstream. Paragraph 65 specifically alleges that during high
flow events, the stormwater backs up into FCWRD’s polishing pond, interfering with the pond’s
ability to polish the effluvent from FCWRD and acting as a pollutant to FCWRD’s pond.
1
FCWRD notes that a pleading which comports with the Illinois Code of Civil Procedure
a fortiori
satisfies the
more relaxed standard for pleadings in an administrative proceeding. “It is correct that pleadings or charges in an
administrative proceeding need not be drawn to comply with the same technical requirements as imposed in court
actions.”
Winnetkans Interested in Protecting the Environment (WIPE). Illinois Pollution Control Board,
55
Ill.App.3d 475, 482, 370 N.E.2d 1176 (1
st
Dist. 1977).
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7
Paragraph 68 alleges that this breach of MWRD’s statutory duty causes or contributes to water
pollution in violation of Section 12(a) of the Act. Paragraph 69 alleges that this breach of
MWRD’s statutory duty is a violation of Board rule 307.1101 prohibiting any person from
introducing pollutants that interfere with the operation and performance of FCWRD.
After outlining the “ultimate facts” alleged in the Complaint in
Carriage Way West,
the
Illinois Supreme Court observed: “That will start the suit by putting the defendants on notice of
the plaintiff’s legal theory and underlying facts. Further facts can be developed in discovery and
at trial.” 88 Ill.2d at 310. Likewise, in this case, the Complaint, including specifically
Paragraphs 61-70, has advised MWRD of FCWRD’s legal theory and underlying facts. Further
facts can be developed in discovery and at trial.
C.
A Bill of Particulars Is Unnecessary
MWRD’s alternative request for a Bill of Particulars is the wrong vehicle to go about
developing the evidentiary facts in this administrative proceeding. As noted by MWRD, the
Board’s procedural rules do not contain a provision for a Bill of Particulars; a pleading devise
seldom used in civil cases. “A bill of particulars is a pleading requested, for the most part, in
criminal cases. Its purpose is to supplement in detail an already sufficient charge to enable a
defendant or respondent to better prepare a defense.”
Madonia v. Houston
, 125 Ill. App. 3d 713,
718-19, 466 N.E. 2d 648 (4
th
Dist. 1984).
A better vehicle for obtaining and developing the detail supplementing FCWRD’s
already sufficient Complaint, is the broad discovery provided for in the Board procedural rules
subpart F: Hearings, Evidence and Discovery, Section 101.600 through 101.632, including
specifically Interrogatories, Section 101.620; Production of Information, Section 101.614; and
Subpoenas and Depositions, Section 101.622.
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8
CONCLUSION
WHEREFORE, for the foregoing reasons, Complainant Flagg Creek Water Reclamation
District respectfully requests that: 1) the Board deny MWRD’s Motion to Strike and Dismiss
Paragraphs 61 through 70 of Count II; 2) deny MWRD’s alternative Motion for Leave to Serve a
Bill of Particulars, and; 3) accept the case for hearing.
Respectfully submitted,
FLAGG CREEK WATER
RECLAMATION DISTRICT
By: /s/ John A. Simon
One of Its Attorneys
Dated: April 19, 2006
Richard J. Kissel
Roy M. Harsch
John A. Simon
Gardner, Carton & Douglas, LLP
191 N. Wacker Drive
Suite 3700
Chicago, IL 60606-1698
CH01/ 12470051.1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 19, 2006