BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
DISTRICT
Complainant
VILLAGE OF HINSDALE, METROPOLITAN
WATER RECLAMATION DISTRICT OF
GREATER CHICAGO, ILLINOIS
DEPARTMENT OF TRANSPORTATION,
DUPAGE COUNTY
Respondents.
PCB 06-141
NOTICE OF FILING
To:
PERSONS ON ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have filed today with the Office of the Clerk of the
Illinois Pollution Control Board, 100 West Randolph Street, Suite 11-500, Chicago, Illinois,
copies of which are herewith served upon you, of the
FCWRD's Response in Opposition to
MWRDGC's Motion to Strike and Dismiss Count I1 of FCWRD's Amended Complaint and
Notice of Filing.
Respectfully submitted,
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
Dated: August 18 2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
SERVICE LIST
Flagg Creek Water Reclamation District v. Village of Hinsdale, et al.
Lance T. Jones
Deputy Chief Counsel
Illinois Department of Transportation
2300 South
Dirksen Parkway, Room 3 11
Springfield,
IL 60606
Phone: (2 17) 782-32 15
Fax:
(217) 524-0823
Email
:
Lance. Jones@illinois.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 601 87
Phone: (630) 407-8205
robert.douglas@dupageco.org
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: (3 12)
8 14-891 7
Email: hallorab@ipcb.state.il.us
Alan J. Cook, Esq.
Lisa Luhrs Draper, Esq.
Metropolitan Water Reclamation District of
Greater Chicago
100 East Erie Street
Chicago, IL 6061 1-3 154
Phone: (3 12) 75 1-6576
alan.cook@mwrd.org
lisa.luhrsdraper@mwrd.org
For the Metropolitan Water Reclamation District
of Greater Chicago
William D. Seith, Esq.
Total Environmental Solutions
635 Butterfield Road, Suite 240
Oakbrook Terrace, IL 60 18 1
Email: wdseith@tespc.com
Mark Burkland, Esq.
Holland
&
Knight, LLC
13 1 S.
Dearborn Street, 3oth Floor
Chicago, IL 60603
Phone: (3 12) 578-6557
Email: mark.burkland@hklaw.com
For the Village of Hinsdale
IPCB Hearing
Officer
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
DISTRICT
Complainant
VILLAGE OF
HINSDALE, METROPOLITAN
WATER RECLAMATION DISTRICT OF
GREATER CHICAGO, ILLINOIS
DEPARTMENT OF TRANSPORTATION,
DUPAGE COUNTY
Respondents.
PCB 06-
14 1
CERTIFICATE OF SERVICE
The undersigned being first duly sworn upon oath states that I served FCWRD's
Response in Opposition to MWRDGC's Motion to Strike and Dismiss Count I1 of FCWRD's
Amended Complaint, on the 18th day of August 2006, via electronic mail transmission to each
person to whom it is directed.
Subscribed and sworn to
befo~me
this
MmlW L. Tomn
Notary Public
Sbk
d
Minois
My Commission Explrr
W12)07
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION
DISTRICT
Complainant
VILLAGE OF
HINSDALE, METROPOLITAN
WATER RECLAMATION DISTRICT OF
GREATER CHICAGO, ILLINOIS
DEPARTMENT OF TRANSPORTATION,
DUPAGE COUNTY
Respondents.
PCB 06- 14
1
1
Bradley P. Halloran
Hearing Officer
)
)
1
FCWRD'S RESPONSE IN OPPOSITION TO MWRDGC'S MOTION
TO STRIKE AND DISMISS COUNT
I1 OF FCWRD'S AMENDED COMPLAINT
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 July 28, 2006 Motion to Strike and Dismiss
Count I1 of FCWRD's Amended
Complaint brought by Respondent Metropolitan Water Reclamation District of Greater Chicago
("MWRDGC's Motion") as follows:
I.
INTRODUCTION
MWRDGC's Motion challenges this Board's jurisdiction to hear both claims against it
alleged
in Count I1 of the Amended Complaint. The Board has already accepted for hearing
FCWRD's first claim against MWRDGC, regarding MWRDGC's diversion of wet weather flow
from the MWRDGC-served area in
DuPage County into FCWRD's sewer system. In any event,
MWRDGC's challenge to the Board's jurisdiction to proceed with this claim in Count
I1 is
misguided. Count
I1 does not seek to have this Board enforce a contract or award damages for
breach of a contract. Indeed, the Amended Complaint does not even allege the existence of a
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contract'. Nevertheless the historical context pursuant to which the current situation in which
MWRDGC serves an area of
DuPage County roughly equivalent to the area in Cook County
served by FCWRD, is relevant factual background information for this Board to consider when
adjudicating
MWRDGC's control over causing or allowing pollution, alleged in the Amended
Complaint.
MWRDGC also challenges the Board's jurisdiction to proceed with the second claim
against it
in Count 11, regarding the manner in which MWRDGC exercises its undisputed
authority to manage stormwater in Cook County so as to impair the operation and performance
of FCWRD. This challenge is based upon a misreading of the Amended Complaint, or a
misreading of the June 1,2006 Order of this Board, or both.
In its June
1, 2006 Order, this Board found: "As pled, the complaint requires the Board
to determine whether MWRDGC has violated its enabling statute in order to determine whether
MWRDGC has violated the Act and Board regulations." Order, p.
7.
Because the Board
concluded that it lacked jurisdiction to adjudicate alleged violations of other statutes and
regulations, the Board concluded that the complaint as pled requested relief that the Board did
not have authority to grant.
Id.
pp. 8-9. The Board directed FCWRD to file an amended
complaint consistent with the
terms of its Order, on or before July 6, 2006.
On June 29,2006,
FCWRD filed its Amended Complaint. The Amended Complaint does
not allege violations of the
MWRDGC Act, notwithstanding MWRDGC's assertions to the
contrary. The Amended Complaint pleads only violations of the Environmental Protection Act
(the "Act"), Board regulations and conditions of various permits issued pursuant to the Act and
Board regulations.
I
Paragraph
5
1
of the Amended Complaint actually alleges the absence of a current contract: "FCWRD has a draft
agreement with
MWRD that has not been executed."
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11.
COUNT I1 OF AMENDED COMPLAINT
Count
I1 of the Amended Complaint sets forth two claims against MWRDGC.
Paragraphs 49-60 allege that MWRDGC's diversion of wet weather flows from
an area in
DuPage County which MWRDGC serves, combined with wet weather flows FCWRD receives,
causes or contributes to unauthorized
CSO's within FCWRD's system in violation of
MWRDGC's NPDES permit, and in violation of Board regulations found at 35
11. Adm. Code
Part 306, Subpart C, Amend. Complt., 757. This same MWRDGC's wet weather diversion also
causes or contributes to water pollution in violation of regulations and standards adopted by the
Board under the Act, Amend. Complt.
758. Finally, this MWRDGC's wet weather diversion
also introduces pollutants that interfere with the operation and performance of FCWRD in
violation of Board rule 35
11. Adm. Code 307.1 101, Amend. Complt. 759.
The second claim against MWRDGC is contained in paragraphs
61-66 of Count I1 which
allege that MWRDGC, as the designated storrnwater management agency for Cook County, has
carried out its storrnwater management activities in such a way as to allow dead trees and other
detritus to obstruct stormwater that flows into Flagg Creek from properly flowing downstream,
and thereby causing and contributing to water pollution in violation of the Board regulations and
the Act and introducing pollutants that interfere with the operation and performance of FCWRD,
in violation of Board rule at 35
11. Adm. Code 307.1 101. Amended Complaint, 7165-66.
111.
THE BOARD'S JURISDICTION
The Pollution Control Board, established pursuant to Section 5 of the Illinois
Environmental Protection Act, 415 ILCS
515, is vested with
". . .
authority to conduct
proceedings upon complaints charging violations of this Act, any rule or regulation adopted
under this Act, any permit or term or condition of a permit
. .
[.I" 415 ILCS 5/5(d). Section
3 1 (d) of the Act provides that: "Any person may file with the Board a complaint, meeting the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
requirements of subsection (c) of this Section, against any person allegedly violating this Act,
any rule or regulation adopted under this Act, any permit or term or condition of a permit, as any
Board order
. . .
Unless the Board determines that such Complaint is duplicative or frivolous, it
shall schedule a hearing
. . ."
415 ILCS 5/3l(d). "'Frivolous' means a request for relief that the
Board does not have the authority to grant, or a complaint that fails to state a cause of action
upon which the Board can grant relief." 35
Ill. Adm. Code 101.202.
IV.
ARGUMENT
A.
The Board has Jurisdiction to Adjudicate the Alleged Violations of the Act and
Board Regulations, Without Regard to Whether or Not a Contract Exists.
Although the claim against MWRDGC set forth in paragraphs 49-60 of the Amended
Complaint was plead almost verbatim in the original complaint, MWRDGC raised no issue about
the Board's jurisdiction to accept that claim for hearing, when it filed its motion to strike
paragraphs
61 -70 of the original complaint. Indeed, after making its own independent
assessment as to whether this claim was duplicative or frivolous, this Board determined that it
was not frivolous and accepted the claim for hearing. June 1,2006 Order, p. 9. Nevertheless,
M WRDGC now contends that this Board lacks jurisdiction to proceed with this claim alleging
violations of the Act, Board regulations and Board
issued permits because the Amended
Complaint purportedly alleges the existence of a contract between FCWRD and MWRDGC.
MWRDGC Motion,
p. 2.
As noted above, the Amended Complaint does not actually allege the existence of a
contract between MWRDGC and FCWRD. The Amended Complaint alleges that historically
FCWRD has served an area in Cook County that was placed under the jurisdiction of MWRDGC
in the
1970's. Amended Complaint,
7
49. Further, the Amended Complaint alleges that a draft
agreement with MWRDGC has not been executed. Amended Complaint,
7
5 1. In any event, the
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Amended Complaint does not allege a claim for breach of contract. Rather, the Amended
Complaint alleges violations of the Act, Board regulations and permits as well as the underlying
facts which show
MWRDGC's control over causing or allowing pollution.
Moreover, MWRDGC misunderstands this Board's prior rulings upon which it relies in
support of its Motion. In both IEPA v. Will County Landfill, PCB 72-13 (December
12, 1972)
and
Mather Investment Properties, L.L. C. v. Illinois State Trapshooters Assoc., Inc., PCB 05-29
(July 29,
2005)' the Board asserted jurisdiction and accepted the case for hearing,
notwithstanding the existence of the contracts alleged. Indeed, in IEPA
v. Will County Landfill,
the existence of the lease agreements was the basis upon which the Board accepted jurisdiction
over the
Fahey Estate. "We assert jurisdiction only to determine those issues relating to the
quality of our environment." Id. The Board declined to determine the rights of the parties for
indemnity under the lease or for breach of contract. The Amended Complaint in this case does
not seek indemnity under a contract or allege breach of contract. Properly understood, IEPA
v.
Will County Landfill actually supports the Board's acceptance of jurisdiction of Count 11, rather
than MWRDGC's Motion.
In
Mather Investment Properties, L. L. C. v. Illinois State Trapshooters Association, Inc.,
PCB 05-29 (July 21,
2005)' the Board distinguished the parallel case pending in the Circuit
Court
of Sangamon County. The Sangamon County Circuit Court case alleged breach of
contract and sought contract damages. The case before the Board involved two of the same
parties and arose out of the same circumstances, but alleged only violations of the Act. The
Board explained that notwithstanding the overlapping factual basis for the claims, including the
existence of the various contracts, which were pled in the IPCB complaint, as well as the
overlapping parties, the case before it was not duplicative or frivolous. The Board in
Mather
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held: "On the other hand, the complaint in this matter alleges only that Trapshooters Association
has violated Section
2 1 (e) of the Act (4 15 ILCS 512 1 (e) (2004), adjudication of which falls
within the Board's statutory authority. See 41 5 ILCS
5/5(d) (2004)." Mather, p. 11. Likewise
in this case, FCWRD alleges only that MWRDGC has violated the Section
12(a) of the Act,
Board regulations at 35
11. Adm. Code 306 Part C, 307. 1 101 and conditions of MWRDGC's
NPDES permit. Adjudication of these alleged violations falls within the Board's statutory
authority.
See
415 ILCS 5/5(d). Thus, Mather, like Will County Landfall, supports this Board's
assertion ofjurisdiction over Count
I1 of the Amended Complaint.
FCWRD draws the Board's attention to
IEPA v. Village of Millstadt, et al., PCB 78-132
(Sept.
7, 1978), where the Board rejected the very argument advanced by MWRDGC in this
case. In Millstadt, respondent TAC moved to dismiss arguing that accepting jurisdiction would
require the Board to determine third party contract rights. The Board explained:
The only question before the Board is whether respondents did in fact cause or allow
pollution, and that question must be resolved based upon the evidence developed in the
record. The Complaint before us alleges a cause of action against TAC over which we
have jurisdiction under the Act. Whether indeed TAC did exercise such control as to
cause or allow pollution must be resolved based on the record.
Id. Similarly in this case, the Amended Complaint alleges a cause of action against MWRDGC
over which the Board has jurisdiction. Whether indeed MWRDGC did exercise such control as
to cause or allow pollution must be resolved based on the evidence developed in the record.
B.
Count I1 Alleges Violations of the Act and Board Regulations, And Does Not
Allege Violations of the MWRDGC Act.
The Amended Complaint does not allege that MWRDGC has violated MWRDGC's
enabling statute, 70 ILCS 260517h (the "MWRDGC Act"), or otherwise seek to have the Board
adjudicate violations of the MWRDGC's Act. Although at various points in MWRDGC's
Motion, Respondent does contend that the Amended
Complaint contains such an allegation,
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MWRDGC's Motion conspicuously fails to cite any such allegation in the Amended Complaint.
Rather, MWRDGC cites to the paragraph in the Amended Complaint which alleges that
MWRDGC is authorized by statute to manage stormwater in Cook County. MWRDGC's
Motion,
pp. 10-1 1. There is no question that MWRDGC is authorized by statute to manage
stormwater in Cook County. Indeed, MWRDGC quotes language of its enabling MWRDGC Act
to confirm this undisputed fact. MWRDGC's Motion, p.
10, n. 3. The Amended Complaint's
reference to MWRDGC's undisputed authority to manage stormwater in Cook
County is not an
allegation that MWRDGC is violating the MWRDGC Act.
MWRDGC's Motion misinterprets this Board's June 1, 2006 Order in this regard, as well
as
the statutory and precedential basis for the Order. In this Board's June 1,2006 Order, it
determined that its authority: "to conduct proceeding upon complaints charging
violations
of this
Act, any rule or regulation adopted under this Act," did not confer upon it authority to determine
violations
of other statutes or regulations. June 1,2006 Order, p. 8. (emphasis supplied).
Thus, this Board concluded: "As pled, the complaint requires the Board to
determine whether MWRDGC has
violated
its enabling statute in order to determine whether
MWRDGC has violated the Act and Board regulations."
Id.
(emphasis supplied). The statutory
language conferring jurisdiction on the Board over: "complaints charging
violations
of this Act"
was not broad enough to include complaints charging
violations
of other acts in conjunction with
violations of this Act, the Board concluded.
MWRDGC contends that the mere reference in the Amended Complaint to MWRDGC's
statutory duty relative to stonnwater management under its enabling
MWRDGC Act somehow
divests the Board of jurisdiction to consider the alleged violations of the Act and Board
regulations. MWRDGC essentially argues that all references to statutory authority other than the
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Environmental Protection Act must be ignored by this Board. Thus, MWRDGC posits:
"Without reliance on the Stormwater Management Act, MWRDGC has no greater duty
. . ."
MWRDGC's Motion, p. 11. This suggestion that consideration of the MWRDGC's Act is off-
limits to this Board for the purpose of assessing MWRDGC's undisputed control over
storrnwater management in Cook County is mistaken.
MWRDGC's reliance upon Concerned Adjoining Owners and Those Opposed to Area
Landfills
(T.O. T.A.L.) v. PCB, 288 111. App. 3d 565 (5th Dist. 1997) and Material Service Corp. v.
J. W Peters
&
Sons, Inc., PCB 98-97 (April 2, 1998) in support of this argument is misplaced.
The court in
T.
0.
T.A.L. did not rule that the Board lacks jurisdiction to rely upon or consider the
authority and responsibility of the City of Salem under the Municipal Code in connection with
an
alleged violation of Act. Rather,
TO.
T.A.L. held only that the Board was not authorized to
determine whether the Salem City Council violated the Illinois Municipal Code when purchasing
and annexing the property for the proposed landfills. Id. at 576. Likewise, in Material Service
Corp., the Board did not hold that it lacked authority to consider the Gasoline Storage Act, or the
authority that act conferred upon the Office of the State Fire Marshall. Rather, the Board ruled
that it lacked: "jurisdiction to determine whether Peters is in violation of 41
111. Adm. Code 170,
670; this determination must be made by the OSFM." Material Service Corporation at p.
3,
(emphasis supplied). MWRDGC has cited no authority which supports its contention that the
Board is prohibited from relying upon its enabling statute, the MWRDGC Act, for the purpose of
confirming the undisputed fact that MWRDGC has authority over stormwater management in
Cook County.
Indeed, such a restriction upon the Board's authority would significantly impair the
Board's ability to effectively conduct proceedings upon complaints charging violations of the
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Act or Board regulations. Acceptance of MWRDGC's contention that the Board may not
consider or rely upon statutes or regulations other than the Act and Board regulations, would
sharply curtail the Board's jurisdiction over municipalities, sanitary districts or other political
subdivisions, as they are all creatures of statute from which they derive their authority and
responsibility.
If the enabling act of any municipality, sanction sanitary district or other political
subdivision could not be considered b the Board, the Board would be powerless to determine
necessary issues of authority and control, fashion remedies, and otherwise adjudicate alleged
violations of
the Act committed these entities. In the case A.E. Staley Manufacturing Company
v. Environirzental Protection Agency, 8 Ill. App. 3d 101 8 (4'" Dist. 1972), the court reaffirmed the
principle of administrative law 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. Control over causing or allowing
pollution is a relevant consideration this Board may consider when making a determination
whether allegations of violations of the Act or Board regulations are established. Thus, without
in any manner determining whether MWRDGC has complied with the
MWRDGC Act, the
Board may properly consider the MWRDGC Act as reasonably necessary for purposes of its
undisputed authority and control over stormwater management in Cook County in connection
with the alleged violations of the Act, Board regulations, and conditions of permits issued
pursuant to the Act, alleged in the Amended Complaint.
V.
CONCLUSION
WHEREFORE, for the foregoing reasons, Complainant Flagg Creek Water Reclamation
District respectfully requests that the Board deny
MWRDGC's Motion to Strike and Dismiss
Count
I1 of FC WRD's Amended Complaint in its entirety, and accept the Amended Complaint
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006
as plead for hearing on the alleged violations of the Act, Board regulations and conditions of
permits issued pursuant to the Act.
Respectfully Submitted,
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
(3 12) 569- 1000
Attorney No. 90304
CH02122459232.1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 18, 2006