OFFICE
OF THE
AT1’ORNEY GENERAL
STATE OF ILLINOIS
CLERK’S OFACE
DEC
142004
STATE OF ILLINOIS
Pollut~o~
Control Board
Lisa Madigan
ATTORNEY GENERAL
December 10, 2004
Re:
People
v. J. McDaniel,
Inc.,
an Illinois corporation
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies
of
a
NOTICE
OF
FILING,
COMPLAINT and APPEARANCE in regard to the above-captioned matter.
Please file the originals
and
return
file-stamped
copies of the
documents
to
our
office
in
the enclosed
self-addressed,
stamped envelope.
Thank you for your cooperation
and consideration.
JLH/pp
Enclosures
500 South
Second Street,
Springfield,
Illinois
62706
•
(217)
782-1090
•
‘ITY:
(217)
785-2771
•
Fax:
(217) 782-7046
100
\Vest
Rando(ph Street, Chicago, Illinois
60601
•
(312) 814-3000
•
‘flY:
(312) 814-3374
•
Fax:
(312) 814-3806
1001
l~
isi
\1
tin
(
irhonil
tic
1llinoi~62901
(61S)
~29 6400
1
1
\
(618)
~29 641),
1
ix
(616)
~9
6416
The Honorable
Dorothy Gunn
Illinois
Pollution
Control
Board
James
R.
Thompson Center,
Ste.
11-500
100
West Randolph
Chicago,
Illinois 60601
Very-truly
~man
Environmental
Bureau
500
South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
RECEfl/ED
CLERK’S OFFICF
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARD
DEC
14
2004
PEOPLE OF THE STATE OF
)
ILLINOIS
)
STATE OF ILIJNOIS
Pollution
Control Board
Complainant,
vs.
)
PCB
No.
V~
)
(Enforcement)
J.
McDANIEL,
INC.,
an
Illinois
corporation,
Respondent.
NOTICE OF FILING
To:
Jerry L.
McDaniel
Registered Agent
303
S.
Hutton
P.O.
Box
126
Newton,
IL 62448
PLEASE TAKE
NOTICE that on this
date
I
mailed for filing with the Clerk of the Pollution
Control
Board
of the
State
of
Illinois,
a
COMPLAINT,
a
copy
of which
is attached
hereto
and
herewith
served
upon you.
Failure to
file an
answer to
this Complaint within
60
days
may have
severe
consequences.
Failure
to
answer will
mean
that all
allegations
in
this Complaint
will
be
taken
as
if
admitted
for
purposes
of
this
proceeding.
If
you
have
any
questions
about
this
procedure,
you should
‘contact the hearing officer assigned to this proceeding, the Clerk’s Office
or an attorney.
1
FURTHER,
please
take
notice
that
financing
may
be
available,
through
the
Illinois
Environmental
Facilities
Financing Act,
20
ILCS 3515/1
(2002), to
correct the pollution alleged
in
the Complaint filed
in this case.
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS
LISA MAD IGAN,
Attorney General of the
State
of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigatic~Div~s~,J
BY:
J\”7
if’
I
~.
L. .HOMAN
L’~s~-r~.tant
Attorney General
Environmental Bureau
500
South Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
December 10,
2004
2
CERTIFICATE
OF SERVICE
I
hereby certify that
I
did
on
December 10,
2004,
send
by certified
mail, with postage
thereon fully prepaid, by depositing in a
United
States
Post Office
Box a true and
correct copy
of the following
instruments entitled NOTICE
OF
FILING,
ENTRY OF APPEARANCE
and
COMPLAI NT:
To:
Jerry L.
McDaniel
Registered Agent
303
S.
Hutton
P.O.
Box 126
Newton,
IL 62448
and
the original and
ten copies by First Class
Mail with
postage thereon fully prepaid
of the
same foregoing
instrument(s):
‘
To:
Dorothy
Gunn, Clerk
Illinois Pollution Control
Board
James
R.
Thompson Center
Suite
11-500
100
West Randolph
Chicago,
Illinois 60601
7~y
-
~
~:
.7
J’.
L.~,Homan
!Assistant Attorney General
L
This filing
is
submitted
on
recycled paper,
RECE
WED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
DEC
142004
PEOPLE OF THE
STATE OF
)
Poflution Control Boad
ILLINOIS,
)
Complainant,
vs.
)~No.
ôS~~lIO
J.
McDANIEL, INC.,
an
Illinois
corporation,
)
Respondent.
)
ENTRY OF APPEARANCE
On
behalf of
the Complainant,
PEOPLE
OF THE
STATE
OF
ILLINOIS,
J.
L.
HOMAN,
Assistant Attorney General
of the
State
of
Illinois,
hereby enters
her a’ppe~ranceas attorney of
record.
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MAD IGAN
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigatio,~
D,~v~sion
~_~_/
~-.‘.
BY:
~/\,i,’~
~
F-IOMAN
Environmental Bureau
Assistant Attorney General
500
South Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
December
10,
2004
RE CE
~V ~
D
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARDCLERKS
OFFICE
DEC
14
2004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ILLINOIS
PolIut~onControl Board
Complainant,
v.
)
PCBNo.
()Z~
)
(Water-Enforcement)
J.
McDANIEL, INC.,
an Illinois
corporation,
Respondent.
COMPLAINT
Complainant,
PEOPLE OF THE STATE
OF ILLINOIS,
by LISA MADIGAN,
Attorney
General of the State of
Illinois, complains
of Respondent,
J.
McDANIEL, INC.,
an
Illinois
corporation,
as follows:
COUNT
I
WATER POLLUTION
(VERMILION COUNTY)
1.
This Complaint
is brought by the Attorney General
on
her own
motion and at
the
request of the Illinois
Environmental Protection.Agency (“Illinois EPA’),
pursuant to the terms
and
provisions of Section
31
of the Illinois
Environmental
Protection ‘Act (“Act”), 415 ILCS
5/31
2.
The Illinois
EPA is an
agency of the
State of Illinois
created by
the
Illinois
General
Assembly
in
Section 4 of the Act,
415
ILCS 5/4
(2002),
and charged,
inter a/ia,
with the
duty of
enforcing the Act.
3.
This Complaint is brought pursuant to Section
31
of the Act, 415
ILCS
5/31
(2002),
after providing
the Respondent with
notice and the opportunity for a meeting with
the
Illinois
EPA.
4.
J.
McDaniel,
Inc.,
(“McDaniel”),
is
an Illinois
corporation
in good standing
and
is a
trucking
company with terminal facilities throughout Illinois.
1
5.
Section
12 of the Act, 415
ILCS 5/12 (2002),
provides in
pertinent
part that:
No person shall:
a.
Cause or threaten
or allow the discharge of any contaminants
into the
environment in
any State so
as to
cause or tend
to cause water pollution
in
Illinois, either alone or
in combination with
matter from other sources,
or so as to violate regulations or standards adopted
by the Pollution
Control
Board
under this Act;
*
*
*
d.
Deposit any contaminants
upon the
land
in
such place
and
manner as to
create a water pollution hazard;
*
*
*
6.
Section 3.165 of the Act, 415
ILCS 5/3.165
(2002) provides:
“Contaminant”
is any solid,
liquid,
or gaseous matter,
any
odor, or any form of
energy, from whatever source.
7.
Section
3.395 of the Act, 415
ILCS 5/3.395 (2002) provides in
pertinent part:
“Release”
means any spilling,
leaking,
pumping,
pouring,
emitting, emptying,
discharging,
injecting, escaping,
leaching,
dumping,
or disposing into
the
environment.
.
8.
Section
3.545
of the Act, 415
LOS
5/3.545
(2002) provides:
“Water pollution” is such alteration of the physical, thermal, chemical, biological
or radioactive
properties of any waters of the State, or such discharge
of any
contaminant into any waters of the State, as
will or is likely to createa-nuisance~----
or render
such waters harmful
or detrimental or injurious to
public health, safety
or welfare, or to domestic,
commercial, industrial,
agricultural,
recreational,
or
other
legitimate
uses, or to
livestock,
wild animals,
birds,
fish,
or other aquatic
life.
9.
Section
3.550
of the Act, 415 ILCS 3.550 (2002) provides:
“Waters” means all
accumulations of water, surface
and underground,
natural,
and
artificial,
public
and
private, or parts thereof, which are
wholly or partially
within, flow
through,
or border upon this State.
10.
At about’ 1:00 p.m. on
November
12,
2001,
a truck
driver employed
by the
Respondent was operating
a tank truck loaded with gasoline
in Danville,
Vermilion County,
2
Illinois.
While maneuvering
at a Clark service station
at the corner of Voorhees and
Bowman
Streets, the tank truck struck a metal post.
A valve
on
the underside of the tanker was sheared
off by the impact
and an
emergency shut-off valve
on the tanker was damaged,
resulting
in the
release of 2,900 gallons of gasoline from the tanker.
11.
The Respondent caused
or allowed the gasoline to discharge
to a storm water
drain and
then
into a drainage way approximately 500
feet from the point of release.
The
gasoline subsequently discharged from the drainage way into Stony Creek approximately 2,000
feet west of the point of release.
12.
Gasoline
and
dissolved
petroleum constituents are “contaminants” as that term
is
defined in the Act, 415
ILCS 5/3.165
(2002).
13.
At approximately 1:15
p.m. on
November 12,
2001,
the Danville
Fire Department
arrived on the scene and
noted the presence
of strong
gasoline odors
in
the area, and
reported
Lower Explosive
Limit (LEL)
readings
in
the storm
sewer ranging from 50-70.
14.
To dilute the gasoline,
and to prevent
a fire or explosion,
the
Fire Department
flushed
the storm sewer at
a. rate of .100 to 200
gallons
per minute for five or six hours.
15.
At
about 2:25
p.m. on
November 12,
2001,
Bodine
Environmental Services
(“Bodine”)~arrivedat the site to
begin
emergency response
actions on behalf of the
Respondent.
Approximately 4,500 gallons of impacted water were
collected,
including
approximately 1,000 gallons
of gasoline.
16.
During the afternoon and evening
of November 12,
2001,
the Fire Department
received many complaints about
the gasoline odors emanating from the drainage way
and
creek, and
in
response,
resumed flushing
of the storm sewer and
drainage way that evening.
17.
Bodine conducted emergency
and
post-emergency response actions
at
the site
from
November 12,
2001,
through November 23,
2001.
3
18.
A second company,
Terracon, was also engaged to
conduct post-emergency
response work on
site.
19.
On November
13,
2001,
the
Illinois
EPA visited
the site along with the
Illinois
Department of Natural
Resources
(“Illinois DNR”),the Vermilion
EMA,
the
Danville Fire
Department,
Bodine and Terracon,
and walked
along the drainage way.
The Illinois
DNR
representatives observed
dead fish
and
macro
invertebrates
in the drainage way and beyond
the spill barriers in
Stony Creek.
Dead fish were observed
up to three-quarters
of a mile
downstream
from the point where the drainage way
enters
Stony Creek.
20.,
On
November
14,
2001, the
Illinois
DNR observed dead
fish
and
a heavy film on
the water just upstream
of the barriers,
approximately one
mile downstream
in Stony Creek.
The
Illinois
DNR estimated
that .6,552 fish were
killed
by the release within the two
and one
half
mile impacted stretch of Stony Creek.
21.
By causing
or allowing the discharge of gasoline and
dissolved
petroleum
constituents
into
a storm sewer,
surface water drainage way, and
Stony Creek, which are
“waters” of the State, and
by causing
a fish
kill,-the Respondent has
caused water pollution
in
the
State of Illinois,
and
thereby violated Section
12(a) of the Act, 415
LOS 5/12(a) (2002).
PRAYER FOR RELIEF
WHEREFORE,
Complainant, the PEOPLE OF THE
STATE
OF
ILLINOIS,. respectfully
request
that the Board
enter an order against the Respondent,
J.
McDaniel,
Inc.:
A.
Authorizing a
hearing
in this matter
at which time the Respondent will
be
required
to answer the allegations herein;
B.
Finding that Respondent has violated
the Act and
regulations as
alleged
herein;
0.
Ordering Respondent to cease and
desist from any further violations
of the Act
and associated
regulations;
4
D.
Assessing against Respondent a civil penalty of fifty thousand
dollars
($50,000)
for each violation
of the Act,
and an
additional penalty of ten thousand
dollars
($1 0,000) for
each day during
which each violation
has continued thereafter; and
E.
Granting such other
relief as
the
Board
may deem
appropriate.
COUNT
II
WATER POLLUTION
HAZARD (VERMILION COUNTY)
1-21.
Complainant realleges and incorporates
herein
by reference paragraphs
1
through 21
of Count
I as paragraphs
I
through
21
of this Count
II.
22.
On
or about November 13,
2001,Terracon collected
soil
samples from the
drainage way at the direction of the Illinois EPA.
The subsequent analytical results
indicated
levels of benzene,
ethyl
benzene, toluene,
and
total xylene (collectively referred
to
as
“BETX”)
as high as
715
milligrams per liter (“mg/I), 3,120
mg/I, 3,690
mg/I,
and
16,900
mg/I,
respectively.
23.
On
April
12, 2002,
the Illinois EPA rejected
Respondent’s proposed
compliance
commitment agreement because it failed
to address the remediation
of the sediment in the
drainage way and’ because the proposed
compliance commitment agreement was
received
after the forty-five (45) day statutory period
for response to
a Violation
Notice
had
elapsed.
24.
A report dated August 7, 2002,
by Terracon
proposed on behalf of the
Respondent to
achieve
remediation
pursuant to the Tiered Approach to
Corrective Action
Objectives
(“TACO”) regulations
in
general and site-specific Tier 2 remediation
objectives
developed
by Terracon.
The August 7,
2002,
report showed
levels of benzene
in
sediments
up
to
three hundred forty-one
mg/I
(341
mg/I).
S
25.
The dispute as to
whether the drainage way
impacted by
the gasoline release
ought to
be
considered
as sediment or soil, for purposes of remedial objectives,
was
not
resolved.
The remedial objectives for sediments that have
been developed are
more stringent
than
those for soils because they are designed
to be protective
of sensitive aquatic organisms.
The Respondent has
subsequently failed to
adequately remediate the BETX contamination of
the drainage way.
26.
By causing or allowing the gasoline and dissolved
petroleum constituents
to
be
released from the tanker truck,
and
deposited
upon the
land within the drainage
way, and
by
subsequently failing
to
remove
such contaminated
soils
or sediments,
the Respondent has
created awater pollution hazard, and
thereby violated
Section
12(d)
of the Act, 415
ILCS
5/12(d)
(2002).
PRAYER
FOR RELIEF
WHEREFORE, Complainant, the PEOPLE OF THE
STATE
OF ILLINOIS,
respectfully
request that the Board enter an
order against the Respondent,
J.
McDaniel,
Inc.:
A.
Authorizing
a
hearing
in this matter
at which time the Respondent will be
required to answer the allegations
herein;
B.’’
Finding’ that
Respondent has-violated the-Act
and
regulations as
alleged
herein;
C.
Ordering Respondent to cease
and desist from
any further violations of the Act
and
associated
regulations;
D.
Assessing against Respondent a
civil penalty of fifty thousand
dollars
($50,000)
for each violation of the Act,
and
an additional penalty of ten thousand
dollars
($10,000) for
each day during which
each
violation
has continued
thereafter; and
E.
Granting
such other
relief as the
Board
may deem
appropriate.
COUNT III
6
WATER POLLUTION
(McLEAN
COUNTY)
1-9.
Complainant realleges and incorporates
herein
by reference paragraphs
1
through 9 of Count
I
as paragraphs
1
through 9 of this Count
Ill.
10.
At about 7:45 a.m.
on April
3,
2001,
a truck driver employed
by the Respondent
was operating a tank truck loaded with
gasoline on
Route
136
in
McLean County,
Illinois.
The
truck crossed
into oncoming
traffic, struck a car,
rolled
over and
struck a utility
pole,
killing
the
driver and
resulting
in the release
of over 8,000 gallons
of gasoline.
11.
The Respondent caused
or allowed the gasoline to
discharge
into a drainageway
over a distance of approximately one
hundred
(100) feet,
after which
it
ran through a
culvert
under Route
136.
12.
Gasoline
and dissolved
petroleum constituents
are “contaminants” as that term
is
defined
in the Act, 415
LOS 5/3.165
(2002).
‘
13.
At approximately 8:15 a.m.
on April
3,2001,
the McLean
Fire Department arrived
on the scene.
14.
To
dilute
the gasoline,
and to
prevent a fire or explosion,
the
Fire Department
applied approximately 600
gallons of foam to the tanker and approximately 12,000 gallons of
Water
to flush the gasoline from the area
adjacent to the roadway.
The Fire Department
also
closed the roadway to traffic to
prevent
exposure of the public
to the risk of fire or explosion.
15.
The gasoline,
along
with the foam
and water, was flushed through the drainage
way and
into a farm field,
and
discharged through approximately two miles of field
tiles into
Sugar Creek.
16.
At about noon
on April 3,2001,
Bodine Environmental Services (“Bodine”)
arrived at the site to
begin emergency response actions on
behalf of the Respondent.
Bodine
attempted
by
using
booms and
an
underflow dam to contain the gasoline within the creek and
7
prevent
its further migration
downstream;
vacuum trucks were
employed
to
recover the gasoline
from the surface of Sugar Creek.
17.
During the afternoon and
evening
of April
3, 2001,
the Illinois Department
of
Natural Resources
(“Illinois
DNR”), observed
dead fish
in
Sugar Creek and
located the point
of
discharge
from the field
tiles.
18.
On
April 4,
2001,
the Illinois
DNR completed
its investigation and
estimated that
55,374 fish were
killed by the release within the four mile impacted stretch of Sugar Creek.
19.
From April
4,
2001 through April
16, 2001,
Bodine
undertook the excavation and
removal of an estimated
1,625 tons of contaminated soil.
Bodine
also installed a
recovery
trench
and
recovery pit along a field
tile to
the north
of the release point.
Illinois
EPA observed
petroleum sheens in
both the trench
and
the pit.
At the request of the McLean
County Health
Department,
Respondent installed
a new septic system for a nearby home
since
petroleum
vapors from
a field
tile
had entered the home through the pre-existing septic system.
20.
On April 4,
2001 ,the
Illinois EPA collected
surface water samples including .the
discharge
point of the field
tiles.
The subsequent analytical
results
indicated
levels
of benzene,
ethyl benzene,
toluene,
and
total xylenes (collectively referred
to
as “BETX”) as
high
as 36
milligrams’per liter (“mg/l)~’3:3mg/I,-69-mg/l,
and
14mg/I,
respectively.
Detectable
levels of
BTEX were reported
by Respondent to
be
present at the discharge point of a field
tile for seven
weeks
after the initial release
occurred.
21.
By causing
or allowing
the discharge
of gasoline and
dissolved
petroleum
constituents into the surface water drainage way and
Sugar
Creek, which are “waters” of the
State,
and
by causing
a fish
kill,
the Respondent has caused water pollution
in
the
State of
Illinois,
and
thereby violated
Section
12(a) of the
Act, 415
ILCS 5/12(a)
(2002).
8
WHEREFORE, Complainant, the PEOPLE
OF THE STATE OF ILLINOIS,
respectfully
request
that the Board enter an order against the Respondent,
J.
McDaniel,
Inc.:
A.
Authorizing
a hearing
in this matter
at which time the Respondent will be
required to
answer the allegations
herein;
B.
Finding that Respondent has violated
the Act and
regulations as alleged
herein;
C.
Ordering Respondent to cease and
desist from
any further violations of the Act
and associated
regulations;
D.
Assessing against Respondent a civil
penalty of fifty thousand dollars
($50,000)
for
each violation of the Act, and
an additional
penalty of ten thousand
dollars
($1 0,000) for
each day during which
each violation
has
continued thereafter; and
E.
Granting such
other relief as the Board
may deem
appropriate.
COUNT IV
WATER POLLUTION HAZARD
(McLEAN
COUNTY)
1-9.
Complainant
realleges and incorporates
herein by reference paragraphs
1
through 9 of Count
I
as paragraphs
1
through 9 of this Count
IV.
10-20.
Complainant realleges and
incorporates herein
by reference paragraphs 10--~-~
through 20
of Count
Ill as paragraphs
10 through 20 of this Count
IV.
21.
A second company,
Earth Tech,
was
also engaged
to conduct
post-emergency
response issues
on
site.
A site investigation
report dated
November 2001
by
Earth Tech
provided on behalf of the Respondent analytical
results of soil and
water samples,
some
of
which exceeded the Tier
1
Soil
Remediation Objectives developed
pursuant to the Tiered
Approach to
Corrective Action Objectives
(“TACO”) regulations.
9
22.
The Illinois
EPA construed the
November 2001 report as
a
proposed compliance
commitment agreement although
it
had
been received after the forty-five day statutory period
for response to
a Violation Notice
had elapsed.
On
December 4,
2001, the Illinois EPA rejected
the proposed
compliance commitment agreement because
clean-up objectives for soil
and
groundwater had
not been
met
in two
areas to
the north
and
south
of Route
136,
and
no
sampling
of a nearby residential well,
surface water or sediments had been conducted or
proposed.
23.
A
remedial action
plan
dated August 2002 by
Earth Tech
proposed
on behalf of
the Respondent td continue efforts
to
mitigate the soil
contamination but did
not include
additional
investigation as to
impacts upon groundwater or a nearby residential well.
24.
As of May 30, 2003, when another remedial
action
plan was
submitted
by
Respondent to the
Illinois
EPA,
soil
and groundwater exceedences
still
remained,
no sampling
of
the residential well, surface water or sediment had
been
conducted, and the biosparge
system
proposed
by Respondent
to
remediate the area around
Route
136
had not been
implemented.
As
of October 21, 2003,
when another report was submitted
by Respondent,
soil
and
groundwater exceedences
still
remained,
and the biosparge system
had not been
implemented.
25.
By causing
or allowing
the gasoline and
dissolved
petroleum constituents to be
released from the tanker truck,
and deposited
upon the
land within the drainage way along
either side of Route
136,
and
in
the area
between the release
point and the nearby residential
well,
the Respondent has created
a water pollution hazard, and
thereby violated Section
12(d)
of the Act,
415
ILCS
5/12(d) (2002).
PRAYER FOR RELIEF
10
WHEREFORE, Complainant,
the PEOPLE OF THE STATE
OF ILLINOIS,
respectfully
request that the Board enter an
order against the Respondent,
J.
McDaniel,
Inc.:
A.
Authorizing
a
hearing in
this matter
at which time the
Respondent will
be
required to
answer the allegations herein;
B.
Finding
that Respondent has violated the Act and
regulations as
alleged
herein;
C.
Ordering Respondent
to cease and
desist from
any further violations of the Act
and associated
regulations;
D.
Assessing against Respondent a civil penalty of fifty thousand
dollars
($50,000)
for each violation
of the Act,
and an
additional
penalty of ten thousand
dollars
($10,000) for
each day during which
each
violation
has
continued thereafter; and
E.
Granting such other relief as the
Board
may deem
appropriate.
Respectfully
submitted,
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
of the
State of Illinois,
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY
~
THOMAS
DAVIS,
Chief
Assistant Attorney General
Environmental Bureau
Of Counsel
J.
L.
Homan
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
/ ~
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