BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WA TER RECLAMATION
)
DISTRICT,
)
Complainant,
)
v.
)
VILLAGE OF HINSDALE, METROPOLITAN
)
WA TER RECLAMATIONDISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY,
)
Respondents.
)
TO:
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on
November 17, 2006, we filed the attached Answer and
Affirmative Defenses to Complainant's Amended Complaint
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 .
NOTICE OF FILING
R
CLERK'S
ECEIV
OFFICE-'
- r`
NO 'l 1 / 20$
PCB No. 2006-141
Pollution
STATE OF
ControlILLINOIt;,So'
.
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
METROPOLITAN WATER RECLAMATION
DISTRICT OF GREATER CHICAGO
BY:
Frederick M . Feldman Its Attorney
STATE OF ILLINOIS
)
S.S.
COUNTY OF COOK
)
SUBSCRIBIFD
and SWORN to before
me this
f7-
day of November, 2006 .
CER TIFICA TE OF
SER VICE
I,
L,
Q
P~ being duly sworn on oath, certify that I caused a copy of the attached
Respondent
Answer and Affirmative Defenses to Complainant's Amended Complaint,
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 JN day of
November, 2006 .
OFFICIAL SEAL
ROSALIE BOTTARI
NOTARY PUBLIC -STATE OF ILLINOIS
MY COMMISSION EXPIRES D4110110
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.
30`' 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. - 2"d Fl.
Chicago, Illinois 60606
Respondent for DuPage County :
Jennifer J . Sackett Pohlenz
Querrey & Harrow, Ltd .
175 West Jackson Blvd. -#1600
Chicago, Illinois 60604
Gabriela Franco Cleveland
Special Asst. Attorney General
Ill
. Dept
. of Transportation
300 W . Adams -
2nd
Fl.
Chicago, 11 60606
Lance T . Jones
Special Asst . Attorney General
111. Dept. of Transportation
2300 S. Dirksen Pkwy - Rm. 311
Springfield, Illinois 62764
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FLAGG CREEK WATER RECLAMATION )
DISTRICT,
)
R E C
r- E
v
L`.
D
Complainant,
)
v.
)
VILLAGE OF HINSDALE, METROPOLITAN )
WATER RECLAMATION DISTRICT OF
)
GREATER CHICAGO, ILLINOIS
)
DEPARTMENT OF TRANSPORTATION,
)
DUPAGE COUNTY.
)
Respondents .
)
CLERK
g OFFICE
NO V 1 / 2066
PCB No. 2006-ATATE
Pollution
OFControl
ILLINOIS
Board
RESPONDENT METROPOLITAN WATER RECLAMATION DISTRICT OF
GREATER CHICAGO'S ANSWER AND AFFIRMATIVE DEFENSES TO
COMPLAINANT'S AMENDED COMPLAINT
Now comes Respondent, the METROPOLITAN WATER RECLAMATION
DISTRICT OF GREATER CHICAGO (hereinafter "MWRDGC"), by its attorney, Frederick
M
. Feldman, and for its Answer and Affirmative Defenses to Complainant Flagg Creek Water
Reclamation District's ("FCWRD") Amended Complaint states as follows :
Jurisdiction
1 .
Respondent MWRDGC admits that FCWRD has filed this action . The
remainder of the allegations contained in paragraph 1 are conclusions of law to which no
answer is required .
The Parties
2.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 2, and therefore denies same
.
3 . The
MWRDGC admits that Hinsdale conveys wastewater to
MWRDGC. The
MWRDGC
lacks sufficient knowledge upon which to form an opinion as to the truth or falsity
of the remaining allegations contained in paragraph 3, and therefore denies same
.
4.
The MWRDGC
lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 4, and therefore denies same
.
5 .
The MWRDGC
lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 5, and therefore denies same .
6.
The MWRDGC denies that it has a
combined overflow equivalent of 0 .5-
million people, and further denies that it serves an area of 872 square miles which includes
124 suburban communities. The MWRDGC
admits the remaining allegations contained in
paragraph 6 .
7 .
The MWRDGC denies that the way it implements its statutory duties
contributes excess flow to FCWRD at any time . The
MWRDGC lacks sufficient knowledge
upon which to form an opinion as to the truth or falsity of the remaining allegations contained
in paragraph 7 and therefore denies same .
8.
The MWRDGC
denies the allegations contained in paragraph 8 .
The Flagg Creek Water Reclamation District System
9.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 9, and therefore denies same
.
10.
The MWRDGC
lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 10, and therefore denies same
.
11 .
The MWRDGC
lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 11, and therefore denies same .
2
12.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 12, and therefore denies same .
13 .
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 13, and therefore denies same .
14.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 14, and therefore denies same .
15.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 15, and therefore denies same .
16.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 16, and therefore denies same .
17 .
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 17, and therefore denies same
.
18 .
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 18, and therefore denies same .
19.
The MWRDGC denies that its actions cause or contribute to unauthorized CSO
events in FCWRD's system
. The MWRDGC lacks sufficient knowledge upon which to form
an opinion as to the truth or falsity of the remaining allegations contained in paragraph 19
regarding the actions of other respondents, and therefore denies same
.
20.
The MWRDGC denies that any corrective action by MWRDGC is required
.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as to the truth or
falsity of the remaining allegations contained in paragraph 20 regarding the actions of other
respondents, and therefore denies same
.
3
Count I:
The Village of Hinsdale
21-48
. The MWRDGC makes no answer to the allegations contained in Count I
because the averments contained therein are not directed towards MWRDGC .
Count II:
Metropolitan Water Reclamation District
49.
The MWRDGC denies that the area in Cook County served by FCWRD was
placed under the jurisdiction of the MWRDGC in the 1970s
. The MWRDGC admits the
remaining allegations contained in paragraph 49 . The MWRDGC affirmatively states that
MWRDGC treats flows from DuPage County equivalent to, or greater than, the flows
generated in the Cook County portion of the Village of Hinsdale .
50.
The MWRDGC admits the allegations contained in paragraph 50 . The
MWRDGC affirmatively states that portions of the Cook County area of the Village of
Hinsdale are served by the MWRDCG .
51
.
The MWRDGC admits the allegations contained in paragraph 51 .
52
.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 52, and therefore denies same
.
53
.
The MWRDGC admits the allegations contained in paragraph 53 .
54.
The MWRDGC admits the allegations contained in paragraph 54. The
MWRDGC affirmatively states that the Village of Hinsdale and FCWRD sewers on which
MWRDGC diversion structures are located handle flows from large areas outside of Cook
County, and not within the territorial boundaries of the MWRD .
55.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 55, and therefore denies same
.
56.
The MWRDGC admits the allegations contained in paragraph 56
. The
MWRDGC affirmatively states that its intercepting sewer system downstream from the
MWRD-served area does not have capacity to accept additional flows.
4
57 .
The allegations contained in paragraph 57 are conclusions of law to which no
answer is required
. To the extent any statement of fact is alleged, the MWRDGC denies
same.
58
.
The allegations contained in paragraph 58 are conclusions of law to which no
answer is required
. To the extent any statement of fact is alleged, the MWRDGC denies
same.
59.
The allegations contained in paragraph 59 are conclusions of law to which no
answer is required
. To the extent any statement of fact is alleged, the MWRDGC denies
same.
60.
The allegations contained in paragraph 60 are conclusions of law to which no
answer is required
. To the extent any statement of fact is alleged, the MWRDGC denies
same.
61 .
The MWRDGC admits the allegations contained in paragraph 61
.
62.
The MWRDGC denies that it levies taxes on residents within Cook County
.
The MWRDGC admits that it levies taxes on real estate within its corporate boundary for
stormwater management
. The remainder of the allegations contained in paragraph 62 are
conclusions of law to which no answer is required
. MWRDGC submits that the Stormwater
Management Act (70 ILCS 2605/7h) speaks for itself
.
63.
The MWRDGC denies the allegations contained in paragraph 63
.
64.
The MWRDGC lacks sufficient knowledge upon which to form an opinion as
to the truth or falsity of the allegations contained in paragraph 64, and therefore denies same
.
65 .
The allegations contained in paragraph 65 are conclusions of law to which no
answer is required
. To the extent any statement of fact is alleged, the MWRDGC denies
same.
66 .
The MWRDGC denies the allegations contained in paragraph 66
.
5
Count III:
Illinois Department of Transportation
67-76 . The MWRDGC makes no answer to the allegations contained in Count III
because the averments contained therein are not directed towards MWRDGC .
Count IV
: DuPage Department of Transportation
77-87
. The MWRDGC makes no answer to the allegations contained in Count IV
because the averments contained therein are not directed towards MWRDGC .
WHEREFORE, Respondent, Metropolitan Water Reclamation District of Greater
Chicago, prays for a finding in its favor and against the Complainant, Flagg Creek Water
Reclamation District, and requests any and all such other relief that this Board deems fair and
just.
AFFIRMATIVE DEFENSES
First Affirmative Defense
(Lack of Authority by Board to Determine Contract Rights)
1 .
FCWRD alleges that FCWRD has a draft agreement with MWRD that has not
been executed.
2.
The purported agreement requires MWRD to divert flow from the FCWRD
and Village of Hinsdale sewer systems (DuPage County) equivalent to the flow generated in
the MWRDGC areas of Hinsdale that are connected to FCWRD and Village of Hinsdale
sewer systems .
3 .
FCWRD further alleges that MWRD does not treat a substantial amount of
flow coming from the DuPage County area, though MWRD is required to treat it under the
parties' draft agreement
.
4.
The parties' draft agreement sets forth the amount of DuPage County flow to
be diverted for treatment by MWRDGC
.
6
5.
The Illinois Pollution Control Board ("Board") does not have authority to
determine private contract rights. The Board's authority under the Act does not extend to
adjudication of the rights and liabilities of FCWRD and MWRDGC pursuant to their draft
agreement . In order for the Board to find the MWRDGC violated Section 12 (a) of the
Environmental Protection Act, based upon its alleged failure to abide by the draft agreement,
the Board would have to interpret the parties' rights and obligations under the draft
agreement, which it is not statutorily authorized to do .
Second Affirmative Defense
(Lack of Authority by Board Over Violations of MWRD Act)
1 .
The Board lacks authority to adjudicate FCWRD's claim asserting that
MWRDGC is in violation of its obligations under the recently enacted Stormwater
Management Act (2605 ILCS/ 7h) .
2.
FCWRD alleges that MWRD is authorized by statute to regulate stormwater
within Cook County .
3.
FCWRD further alleges that stormwater that flows
into Flagg Creek is
obstructed by dead trees and other detritus and does not properly
flow downstream .
4.
FCWRD further alleges that MWRD is required to remove these obstructions
from Flagg Creek .
5 .
FCWRD further alleges that MWRD has failed to remove these obstructions
from Flagg Creek .
6.
The Board's authority does not extend to adjudication of this alleged violation
by MWRD of its statutory authority under the Stormwater Management Act to maintain Flagg
Creek. In order for the Board to find that MWRDGC violated Section 12(a) of the Act based
7
upon its alleged failure to remove obstructions from Flagg Creek, the Board would have to
interpret MWRDGC's obligations under the MWRD Act .
Third Affirmative Defense
(Failure to Mitigate and/or Comply with Environmental Protection Act)
1 .
FCWRD alleges that stormwater obstructed in Flagg Creek backs up into
FCWRD's polishing ponds, thereby interfering with FCWRD's operations
.
2.
FCWRD has failed to take the necessary corrective action to remove dead trees
and other detritus from Flagg Creek in the vicinity of its facilities to prevent stormwater from
backing up into its polishing ponds .
3.
FCWRD has failed to make necessary design and construction improvements,
and to adequately maintain its facilities to ensure its polishing pond operations function
properly .
4
.
Any failure by FCWRD to fulfill its statutory obligations under the Illinois
Environmental Protection Act would have been eliminated and/or lessened had FCWRD
performed required maintenance of Flagg Creek, and adequately designed, constructed and
maintained its polishing ponds to ensure proper operation of its facilities
.
5.
FCWRD had a duty to mitigate its claims .
6.
FCWRD breached its duty to mitigate .
7.
To the extent the MWRDGC is found liable with respect to the claims asserted
by FCWRD, MWRDGC's liability is reduced in proportion to FCWRD's failure to mitigate
its claims and/or comply with the pertinent provisions of the Environmental Protection Act .
8
Fourth Affirmative Defense
(Equitable Estoppel)
1 .
FCWRD alleges that MWRD installed flow restrictors in its sewers, which
block a substantial amount of flow originating in DuPage County from entering the MWRD
system.
2.
The amount of DuPage County flow accepted by MWRDGC was determined
by FCWRD's predecessor in interest, the Hinsdale Sanitary District . A house and head count
was conducted jointly between Hinsdale Sanitary District and Metropolitan Sanitary District
(n/k/a MWRDGC) to estimate the dry weather flow generated in the Cook County areas
connected to the Hinsdale Sanitary District .
3.
MWRDGC adjusted the flow
restricting devices installed in the sewers in
compliance with the recommendations of the Hinsdale Sanitary District.
4.
The input and requirements imposed by the Hinsdale Sanitary District were
complied with in good faith by MWRDGC in adjusting the flow restrictors to accept the
agreed upon amount of flow from Hinsdale Sanitary District sewers
. The MWRDGC's
actions were in full cooperation with, and accepted by, the Hinsdale Sanitary District .
5.
The MWRDGC detrimentally relied upon the representations of Hinsdale
Sanitary District regarding the acceptable amount of flow
.
6 .
FCWRD is now equitably estopped from claiming that the acceptable
flow
amounts asserted by its predecessor in interest are inadequate
.
Fifth Affirmative Defense
(Laches)
1 .
Complainant's amended complaint does not identify a single calendar date,
year, or decade of occurrence of the alleged acts or omissions of the MWRDGC
.
9
2.
Upon information and belief, FCWRD knew or should have known of the
alleged acts or omissions of the MWRDGC many years prior to bringing this action .
3.
To the extent FCWRD is asserting claims against MWRDGC based upon
MWRDGC's decades-old historical practice of accepting the same or similar amounts of flow
from DuPage County, the claims are barred by the doctrine of ]aches .
4.
Complainant's failure to timely assert its claims has substantially prejudiced
MWRDGC's ability to defend itself and has caused MWRDGC to incur increased costs .
WHEREFORE, Respondent, the Metropolitan Water Reclamation District of Greater
Chicago, respectfully requests that the Illinois Pollution Control Board find in its favor and
against Complainant on the aforestated Affirmative Defenses, and requests any and all such
other relief that this Board deems fair and just .
Respectfully submitted,
Metropolitan Water Reclamation District
of Greater Chicago
By
Dated: November 17, 2006
Frederick M . Feldman/Alan J . Cook/ Lisa Luhrs Draper
Metropolitan Water Reclamation District of Greater Chicago
100 E . Erie Street
Chicago, Illinois 60611
(312) 751-6576
Frederick M
. Feldman, Attorney
10
