“Why Is There an Injunction on a Two-Year Old Project?”

That’s the question Judge Michael Caldwell asked rhetorically while explaining to Grafton Township litigants Thomas DiCianni why he had not been able to start the separation of powers suit until 1:30, when it had been scheduled for 10 AM.

“It was a complete surprise to me,” he said about the McHenry County Health Department’s request for a Temporary Restraining Order to stop the Moraine Waste Water Reclamation District from proceding with Phase 2 of a project to install sewers in Port Barrington.

The Northern Moraine Sanitary District's jurisdiction can be seen above. It covers parts of Nunda, McHenry, Wauconda, Grant and Cuba Townships. Most of its territory is near the Fox River. None was on sewer when it was formed. Click to enlarge.

The suit was filed against the district, called NOMO for short, and the village, but, as NOMO attorney David LeSueur pointed out, neither governments did any work on private properties where the destruction of no longer needed septic tanks was at issue.

The County Health Department wanted to issue $200 permits.

LeSueur pointed out the district had been operating thirty-two years and the issue had not arisen until about two years ago.

After reading the paperwork, Judge Caldwell came out of chambers asking, “Why is this an emergency?”

He asked Assistant State’s Attorney Kick Buelow a variation of that question several times and the answer kept coming back that it was “a violation of the ordinance.”

“I keep asking the question because I’m not getting a satisfactory answer,” Caldwell explained.

After the next attempt, the judge said,

“Other than a technical violation of the county ordinance, what is the emergency?”

“They violated the ordinance jeopardizing the safety and health of the people of McHenry County,” Buelow offered.

“There is no urgency here,” LeSueur interjected.

“NOMO has been following this procedure for thirty-two years.”

He pointed out the sanitary district requires property owners to abandon their old septic tanks as is “required by our Illinois EPA permit.”

“There is no emergency here. The county has been award of this for thirty-two years. They ignored it until two years ago.”

LeSueur explained that NOMO requires residents to hire a contractor, to pump out the tank, to crush the tank so it cannot be used again and fill it with dirt.

“In 2008, the county approached the district and said the people need permits. It’s not NOMO or Port Barrington that would need to get a permit.

“The hookup to the sewer is simultaneous to the abandonment. There is not a permit requirement for the abandonment for a septic system,” he explained.

“The standards the NOMO uses are identical to the county’s. NOMO requires compliance with the county ordinance.

“There’s no water pollution occurring.”

The NOMO attorney pointed out that its inspector has three EPA licenses.

“I’m not prepared to rule on it this morning,” Caldwell concluded.

The county attorney starting talking about rain, which LeSueur pointed out was not in the county’s pleadings.

“There are two things that concern me,” Caldwell said. “This is an attempt by the county to inject itself in the lawful (activities of NOMO) and to inject itself into Port Barrington(‘s activities).

“The county doesn’t operate sewer systems.

“These are co-equal units of local government (and I’m unwilling to impose the will of one over the other), this on an emergency basis.”

The judge then pointed out about 90 hookups were already done and asked how many more there were.

“About ninety,” LeSueur replied.

“I don’t believe it’s an emergency and I (believe) this is a dispute the County Health Department has had knowledge of for two, maybe three years. (They) should have been more diligent in pursuing it.”

Caldwell also expressed doubts at the “likelihood of (success)” in winning over a “co-equal branch of local government.”

“Counsel (for NOMO) raises a fair question about the extent of the (county) ordinance.”

And Caldwell denied the county’s request for a Temporary Restraining Order based on the “county’s authority to interfere in the operations of the defendants and the unlikelihood of success on the merits.”

Tomorrow – some of what the judge read before making his decision.


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