,
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General of
the State of Illinois,
Complainant,
v.
THOMAS P. MATHEWS, an individual,
Respondent.
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No. 07-133
(Enforcement-Water)
By:
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the
15
th
day of November, 2007, I filed with the Clerk
of the Illinois Pollution Control Board a Reply to Respondent'sAffirmative Defenses to .
Complaint, copies of which are attached hereto and are hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illinois
V~C1
'1/Vl.
&~
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69
W. Washington St., 18
th
Fl.
Chicago, IL 60602
(312) 814-0608
DATE: November
15,2007
Electronic Filing - Received, Clerk's Office, November 15, 2007
SERVICE LIST
Jim Campion
Campion, Curran, Dunlop
&
Lamb, P.C.
8600 U.S. Highway 14, Suite
201
Crystal Lake,
IL
60012
Mr. Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street,
11
th Floor
Chicago,
IL
60601
Electronic Filing - Received, Clerk's Office, November 15, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
Complainant,
v.
THOMAS P. MATHEWS, an individual,
Respondent.
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)
)
)
)
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)
)
)
)
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No. 07-133
(Enforcement-Water)
REPLY TO RESPONDENT'S
AFFIRMATIVE DEFENSES TO COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN,
Attorney General
of the State of Illinois, hereby replies to the Fifth Affirmative Defense
to the Complaint set forth in the Answer to Complaint
of Respondent, THOMAS P.
MATHEWS, and pursuant to the Illinois Pollution Control Board order dated November
1, 2007, as follows:
RESPONDENT'S FIFTH AFFIRMATIVE DEFENSE - LACHES
1.
Complainant alleges that it first new [sic] of the "soil and stone" on April
22,2005.
REPLY:
Complainant states that the Complaint speaks for itself.
2.
The Illinois EPA or the McHenry County Soil and Water Conservation
District, or both, allegedly reinspected the site on April 27, 2005, May
5, 2005, July 28,
2005 and August
5, 2005.
REPLY:
Complainant admits that the Illinois EPA or McHenry County
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Electronic Filing - Received, Clerk's Office, November 15, 2007
inspected site on April 27, 2005, May 5, 2005, July 28,2005 and August 5, 2005.
Complainant denies any and all remaining allegations in Paragraph 2 and demands strict
proof thereof.
3.
During that period of time, the Respondent did install silt fencing on
property that he owns and controls and he graded portions
of said property.
REPL
Y:
Complainant denies the allegations in paragraph 3. Further
answering, Complainant states that Illinois EPA inspectors found the erosion control
devices Respondent alleged to have installed to be missing, inadequate, or ineffective due
to improper installation and/or lack
of maintenance pursuant to the Complaint.
4.
The Illinois EPA did not return to the alleged site for more than a year,
next inspecting the property on August 30,2006.
REPL
Y:
Complainant admits that the Illinois EPA inspected the site on
August 30, 2006, and that its prior inspection was conducted on August 5, 2005. Further
answering, Complainant states that on August 30, 2006, the Illinois EPA again found
erosion control devises Respondent alleged to have installed to be inadequate and poorly
maintained as stated in paragraph
17 of the Complaint. Complainant denies any
remaining allegations in paragraph 4 and demands strict
proofthereof.
5.
The Illinois EPA did not return again until May
11,
2007.
REPL
Y:
Complainant admits that the Illinois EPA inspected the site on May
11,
2007 and that its prior inspection was conducted on August 30, 2006. Complainant
denies any remaining allegations in paragraph 5 and demands strict
proofthereof.
6.
The Complaint alleges that from April 22, 2005 through May
11,
2007,
the soil and stone was deposited on the site in manner that allowed material and silt-laden
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Electronic Filing - Received, Clerk's Office, November 15, 2007
storm water to flow into the stream that leads to Wonder Lake, altering or threatening to
alter the physical, chemical, thermal or biological properties of the stream. [sic]
REPL
Y:
Complainant states that the Complaint speaks for itself.
7.
Wonder Lake has a long history of being silt-laden, through the erosion of
the shoreline over the past century.
REPL
Y:
Complainant has insufficient knowledge on which to form a basis
to admit or deny the allegations in paragraph 7 and demands strict proofthereof.
8.
More than 100 acres of the 830 acres within Wonder Lake are inaccessible
because they are shallow from sediment running into the lake from Nippersink Creek.
REPL
Y:
Complainant has insufficient knowledge on which to form a basis
to admit or deny the allegations in paragraph 8 and demands strict
proofthereof.
9.
An
island, referred to by the locals as Goose Island, has sprung up the
lake's west bay as a result
of sedimentation.
REPL
Y:
Complainant has insufficient knowledge on which to form a basis
to admit or deny the allegations in paragraph 9 and demands strict
proofthereof.
10.
None of these natural occurrences of sedimentation of Wonder Lake are
attributable to the Respondent.
REPL
Y:
Complainant has insufficient knowledge on which to form a basis
to admit or deny the allegations in paragraph
10 and demands strict proofthereof.
11.
For many years preceding the alleged "soil and stone" piles on the site in
question, the Master Property Owners Association for Wonder Lake has been attempting
to secure $13 million in funding to dredge the lake, which is referred to as "Wonder
Puddle."
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Electronic Filing - Received, Clerk's Office, November 15, 2007
REPLY:
Complainant has insufficient knowledge on which to form a basis
to admit or deny the allegations in paragraph
11 and demands strict proof thereof.
12.
The Master Property Owners Association estimates that 2.5 million yards
of mud needs to be removed from the lake bottom.
REPLY:
Complainant has insufficient knowledge on which to form a basis
to admit or deny the allegations in paragraph
12 and demands strict proof thereof.
13.
The lake has a long-standing sedimentation problem which cannot be
causally related to the Respondent in this matter so the Complainant is unable to meet its
burden
of proof and the case should be dismissed.
REPLY:
Complainant has insufficient knowledge on which to form a basis'
to admit or deny the allegations in paragraph 13 and demands strict proof thereof.
14.
The Complaint in this matter was not brought until June 13,2007.
REPLY:
Complainant admits the Complaint was filed on June
8, 2007.
Complainant denies any remaining allegations contained in paragraph
14 and demands
strict proofthereof.
15.
Because of the lengthy time between the first inspection of the site and the
filing
of this action, Respondent cannot prove that the "soil and stone" on Respondent's
property has not and would not have caused water pollution or a water pollution
hazard.
REPLY:
Complainant denies the allegations contained in paragraph 15.
16.
Because the site has been mitigated, silt fencing installed, and grading
completed, the Respondent cannot prove that the "soil and stone" on Respondent's
property has not and would not have caused water pollution or a water pollution hazard.
REPL
Y:
Complainant denies the allegations contained in paragraph 16.
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Electronic Filing - Received, Clerk's Office, November 15, 2007
17.
The Complainant never requested testing to be completed ascertaining that
there was no impact
by the site and the Respondent complied with all reasonable
instructions to protect the site, such that the Respondent is now impaired in defending
this action through the long delays by Complainant.
REPLY:
Complainant denies the allegations in paragraph 17.
18.
Complainant should be barred by the doctrine
of laches from proceeding
in this matter.
REPLY:
Complainant denies the allegations of paragraph 18.
Respectfully submitted,
LISA MADIGAN, Attorney General
of the State of Illinois
By:eJ~A
VUt,
~.~
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69 W. Washington,
18
th
Fl.
Chicago, IL 60602
(312) 814-0608
5
Electronic Filing - Received, Clerk's Office, November 15, 2007
CERTIFICATE OF SERVICE
I, VANESSA M. CORDONNIER, an Assistant Attorney General in this case, do certify
that I caused to be served this 15
th
day ofNovember, 2007, the foregoing Reply to Respondent's
Affirmative Defenses to Complaint and Notice
of Filing upon the persons listed on said Notice
by depositing same in an envelope, first class postage prepaid, with the United States'Postal
Service at 69
W. Washington St., Chicago, Illinois, at or before the hour of 5:00 p.m.
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VANESSA M. CORDONNIER
Electronic Filing - Received, Clerk's Office, November 15, 2007