BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

GEORGE R. STRUNK.

Complainant,

WILLIAMSON ENERGY, LLC

Respondent.

)

PCB (l7-I35

SECOND MOTION TO DISMISS

NOW COMES Respondent, WILLIAMSON ENERGY, LLC,

by and through its

attorneys, Sorling, Northrup, lIanna, Cullen

Cochran, Ltd., Charles J. Northrup, of counsel

and pursuant to

35 III.Adm. Code 101.506 hereby moves to dismiss this action. In support,

Respondent states:

Procedural Background

On or about June

II, 2007 the above captioned matter was filed with the Illinois

Pollution Control Board (the

"Board").

Apparently, the Complaint was provided to a

representative

of the Respondent on June 5, 2007 prior to filing with the Board.

The Complaint recites a number of specifIc sections of the Illinois Environmental

Protection Act that allegedly have been violated by the Respondent. The Complaint also sets out

a general statement

of the nature of the alleged violations.

On July 5, 2007. Respondent filed a Motion to Dismiss. On August 8, 2007, the

Board granted in part and denied

in part Respondent's Motion to Dismiss. The Board ordered

Complainant to address certain deficiencies in his Complaint and

to /lie an Amended Complaint.

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Although not served upon Respondent or Respondent's counsel, Complainant has

apparently filed certain materials as

an Amended Complaint. Respondent now moves to dismiss

this

"amended complaint"

II.

Factual Background

Upon information and belief, Complainant George R. Strunk is an individual

residing at 16172 Liberty School Road, Marion, Illinois. Williamson Energy LLC operates a

fully permitted (by both lllinois EPA and the Illinois Department

of Natural Resources) coal

mining operation approximately

Y4 of a mile from Mr. Strunk's property.

III.

Argumcnt

Procedural Deficiencies

The Board's August 8, 2007 Order specifically reqUlres that any amended

complaint filed

by Complainant "must comply witb all applicable requirements, including but

not limited to those listed at 35 lll.Adm. Code 103.204 and those pertaining to

proof of service."

Complainant's "Amended Complaint" does not comply with the Board's procedural Rule at

Section 103.204(1). That Rule requires a Complainant to inelude specific language in the

complaint (or notice accompanying the complaint) that the Respondent has 60 days to Answer:

"Failure to filc an answer to this complaint within 60 days may have severc

consequences. Failure to

answer will mean that all allegations in the complaint will be

taken as admitted for the purposes

of this proeeeding.

you have any questions about

this proeedure, you should contact the hearing

officer assigned to this proceeding, the

Clerk's Officc or an attorney"

35 lll.Adm Codc 103.204(1). Given this clear deficiency, the Complaint must be dismissed. See

Stanhibel v. Halat, PCB No. 07-17 (March

1,2006) 2006111. ENV. LEXIS 618.

1n addition, and perhaps morc importantly, Complainant has yet to serve the "Amended

Complaint" upon Respondent or Respondent's counsel.

Whilc Respondent did, on its own,

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discover that an "Amendcd Complaint" has been filed with the Board (by review ofthe Board's

web-site), this docs not satisfy compliance with the Board's rules

or its August 8, 2007 Order.

Respondent does not raise this argument lightly or as a means to impose further requirements

upon a pro se litigant. However, the rules serve an important purpose. Respondent should not

charged with periodically and by chance reviewing the Board's web-site to discover if pleadings

or other documents have been tiled.

is Complainant's obligation to notify Respondent of

ccrtain filings so that Respondent can respond timcly. The Complainant's failure to properly

notify Respondent

of filings will serve only to further delay this matter and potentially prejudice

Respondent in the event a

"deadline" is missed because of a lack of notice. For these reasons,

the Complainant's

"Amcnded Complaint" should be dismissed,

Substantive

Deficiencies

With respcct to the substance of thc "Amended Complaint," portions of it arc

clearly

deficient and should be dismissed. The Board's procedural rules provide that a complaint

must contain certain minimum requirements. These include a reference to the provisions

of the

Illinois Environmental Protection Act

CAet") that have allegedly been violated (103.204(e)(l»

and the dates, location, events, nature, extent, duration, and strength

of the discharges or

emissions (103.204(c)(2)). Thc purpose

of these minimum requirements is to afford Respondent

with

sufficient information to "allow preparation of a defense,"

Scc Stanhibel v. Balat. PCB

No. 07-17 (March

I, 2(06) 2006 Ill. ENV. LEXIS 618.

In this matter, the allegations arc

deficient on legal and factual grounds such that the Complaint docs not meet these minimum

standards.

Complainant references Sections 9(a) and (b) in the "Amended Complaint." With

respect

to 9(a), Complainant references "dust." Apparently to support his complaint about dust,

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Complainant provides a copy of a "Concerned Citizen Reccipt and Report Form" and a copy of a

"Daily Log" of observations. Neither of these documents provide sufficient information to

satisfy the requirements of 103.204(c)(2). The "Concerned Citizen Receipt and Report Form"

merely notes that Complainant called the 1Ilinois EPA and complained about dust. Neither the

Complainant nor this Form identify the naturc, cxtcnt. strength, or duration

of the dust "problem"

as required. In addition, thc "Concerned Citizcn Receipt and Report Form" notes: "Observed

coal dust off of stacker much as most other mines." Clearly this innocuous notation should not

be enough to substantiate a formal Complaint. The

"Daily Log" also suffers from the same

infirmity while a few notations do identify "dust", there

is no information about such required

c1emcnts as nature, extent, strcngth or duration

With respect

to the Complainant's referencc to violations of 9(b) of the Act, that

provision prohibits a variety

of activities without a

permit.

Complainant however makes no

allegation that Respondent is operating without a

permit

(which is not the ease). In fact, the

Complainant merely lumps together his allegations

of "dust" referenced above as a violation of

Section 9(b). In the absencc of any allegations on this

permitting

issue, any claim that Section

9(b) has been violated cannot be sustained and should

be dismissed.

Complainant next again identifies Seetion 12(a), (b), and (c) as being violated.

These sections relate

to causing or allowing water pollution. However, the only factual support

for this alleged violation

is that the Illinois Department of Natural Resources sent a "Notice of

Violation" to "Steelhead Development Company" in January, 2006 concerning a "sediment

basin" issue

in November, 2005.

From the IDNR documents. attached to the "Amended

Complaint" it

is clear that there was no discharge or emission into a water of the State or any

other violation

of Section 12 of the Act. Apparently, too, this "violation" was resolved by the

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submittal of certain "as-built certifications" to the IDNR.

Other than this "incident,"

Complainant makes

no other allegations concerning any violation of Section 12. Complainant

has provided

no datcs of any other watcr problems; no creeks or waterways have been identified;

nor is any nature or extent or consequences

of any discharge is identified. Given the absence of

the information required under 103.204(c)(2), Respondent has no ability to even begin to mount

a defense. Accordingly, any reference

to Section 12(a), (b) and (c) of the Act should be stricken

and the Complaint should be dismissed

ttlr failing to sufficiently plead a cause of action under

Section

12 of the Act.

IV.

Conclusion

WHEREFORE

Itlr all the above reasons, particularly the failure of the Complaint to have

complied with Board rules I03.204(e) and

(I),

Respondent Williamson Energy LLC respectfully

requests that the Board dismiss Mr. Strunk's Complaint

in its entirety and for any other relief the

Board deems appropriate.

Respectfully submitted,

WILLIAMSON ENERGY. LLC

-_.~_---':==-=-:':',L'--+'_.-".",,"::-:::~.

One of its Attorneys

Sorling, Northrup, Hanna,

Cullen

Cochran, Ltd.

Charles

Northrup, of Counsel

Suite 800 Illinois Building

P.O. Box

5131

Springfield, IL 62705

Telephone: 217.544.1144

Fax: 217.522.3 I

E-Mail:

£i.rl(Ftht}llli~9rlinglaw.eom

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PRO_Qf OF SERV1C[;

The undersigned hereby certifies that a eopy of the foregoing document was

electronically filed with:

Ms. Dorothy Gunn, Clerk

Pollution Control Board

100 West Randolph St., Suite 11-500

Chicago, 1L 60601

with a copy to:

George

R. Strunk

16172 Liberty School Road

Marion.

IL 62959

by depositjng

A!"'H'ct-{'

-j~-

./ -

111 the United States mail in Springfield,

.2007, with postage fully prepaid.

on the

1,'

til.

day of

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