BEFORE

THE ILLINOIS POLLUTION CONTROL BOARD

RECE~V~D

PEOPLE OF THE STATE OF ILLINOIS,

)

CLERK’SOFFIC~

LISA M~DIGAN, Attorney General

of the State of Illinois,

)

NOV 09 2O0~

Complainant,

)

vs.

PCB No.

(Enforcement

-

Water)

REDFEAP.N EARTHMOVING,

INC.,

an

Illinois corpbration,

Respondent.

NOTICE OF FILING

TO:

James William Vincent

1480 Route 20 West

Elizabeth,

Illinois 61028

PLEASE TAKE NOTICE that

I have today filed with the Office

of the Clerk of the Illinois Pollution Control Board a Complaint,

Notice of Filing, and a Certificate of Service on behalf of the

People of the State of Illinois,

a copy of which is attached and

herewith served upon you.

Section 103.204(f)

of the Pollution Control Board Procedural

Rules,

35

Ill. Adm.

Code 103.204(f)

provides:

“Failure to file an

answer to this complaint within 60 days may have severe

consequences.

Failure to answer will mean that all allegations

in the 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.”

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

BY:

ZEMEHERET BEREKET-AB

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.1

20th Flr.

Chicago,

IL 60601

(312)

814-3816

DATE:

November

9,

2004

G:\Envir0110lental

Enforcement\Z BEREKET-AB\Redfearn Earthnioving notice of filing

I

109.wpd

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RECE~VED

CLERK’S OFFICE

BEFORE THE

ILLINOIS

POLLUTION

CONTROL BOARD

NOV 09 200

STATE OF ILLINJOIS

PEOPLE OF THE STATE OF ILLINOIS,

)

PoHuUonControlBoard

LISA MAJJIGAN, Attorney General

of the State of Illinois,

Complainant,

vs.

)

No. PCB No.

(Enforcement

-

Water)

REDFEARN

EARTHMOVING,

INC.,

an

)

Illinois corporation,

Respondent.

VERIFIED COMPLAINT

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

by LISA

MADIGAN, Attorney General of the State of Illinois,

on her own

motion and at the request of the Illinois Environmental

Protection Agency,

complains of Respondent, REDFEARN EARTHMOVING,

INC.,

an Illinois corporation,

as follows:

COUNT

I

WATER POLLUTION

1.

This Complaint

is brought on behalf of the PEOPLE

OF

THE

STATE

OF

ILLINOIS

by

LISA

MADIGAN, Attorney General of the

State of Illinois,

on her own motion and at the request of the

Illinois

Environmental

Protection

Agency

(“Illinois

EPA”),

pursuant

to

Section

31

of

the

Illinois

Environmental

Protection

Act

(“Act”)

,

415

ILCS

5/31

(2002)

—1—

---

2.

The Illinois EPA is

an

administrative

agency

of

the State of Illinois, created pursuant to Section

4 of the Act,

415

ILCS

5/4

(2002),

and

charged,

inter alia,

with the duty of

enforcing

the

Act.

The

Illinois

EPA

is

further

charged

with

the

duty to abate violations

of the National Pollutant Discharge

Elimination

System

(“NPDES”)

Permit

Program

under the Federal

Clean Water Act

(“CWA”),

33

U.S.C.

§1342 (b) (7)

3.

At all times relevant to the Complaint, Respondent,

Redfearn Earthmoving,

Inc.,

(“Redfearn”),

is an

Illinois

corporation in good standing.

4.

Section 12(f)

of the Act,

415 ILCS 5/12(f)

(2002),

provides,

in pertinent part,

as follows:

No person shall:

*

*

*

(f)

Cause,

threaten

or

allow

the

discharge

of

any

contaminant into the waters of

the

State,

as

defined herein,

including but not limited to,

waters

to

any

sewage

works,

or

into

any well or

from any point source within the State, without an

NPDES permit for point source discharges issued by

the Agency under Section

39(b)

of this Act,

or in

violation of any term or condition imposed by such

permit,

or in violation of any NPDES permit filing

requirement established under Section 39(b),

or in

violation of any regulations adopted by the Board

or of any order adopted by the Board with respect

to the NPDES program.

*

*

*

5.

The federal Clean Water Act regulates the discharge of

pollutants from a point source into navigable waters and

-2-

---

prohibits such point source discharges without an NPDES permit.

The United States Environmental Protection Agency

(“USEPA”)

administers the ‘NPDES program in.each State unless the USEPA has

delegated authority to do so to that State.

The TJSEPA has

authorized the State of Illinois to issue NPDES permits through

the Illinois EPA in compliance with federal regulations,

including storm water discharges regulated by 40 CFR 122.26,

which requires a person to obtain an NPDES permit and to

implement a storm water pollution prevention plan for

construction activity including clearing, grading and excavation.

6.

In pertinent part,

40 CFR 122.26 provides as follows:

(a)

Permit requirement.

(i)

Prior to October

1,

1994,

discharges composed

entirely of storm water shall not be required

to

obtain

an

NPDES

permit

except:

*

*

*

(ii) A discharge associated with industrial

activity

(see §122.26(a) (4)).

*

*

*

(9) (1)

On and after October

1,

1994,

for discharges

composed entirely of storm water,

that are not required

by paragraph

(a) (1)

of this section to obtain a permit,

operators shall be required to obtain a NPDES permit

only if:

*

*

*

(B)

The discharge is storm water discharge

associated with small construction activity

pursuant to paragraph

(b) (15)

of this section;

*

*

*

-3-

---

(b)

Definitions.

*

*

*

Construction activity including clearing, grading and

excavation,

except operations that result

in the

disturbance of less than five acres of total land area.

Construction activity also includes the disturbance of

less than five acres of total land area that is part of

a larger common plan of development or sale if the

larger common plan will ultimately disturb five acres

or more;

*

*

*

(15) Storm water discharge associated with small

construction activity means the discharge of storm

water from:

(1)

Construction activities including clearing,

grading,

and excavating that result in land

disturbance of equal to or greater than one

acre and less than five acres.

Small

construction activity also includes the

disturbance of less than one acre of total

land area that is part of a larger common

plan of development or sale if the larger

common plan will ultimately disturb equal to

or greater than one and less than five acres.

7.

Section 309.102(a)

of the Board Water Pollution

Regulations,

35

Ill. Adm. Code 309.102(a),

titled, NPDES

Permit

Reguired, provides as follows:

(a)

Except as in compliance with the provisions of the

Act, Board regulations,

and the CWA

(Clean Water

Act),

and the provisions and conditions of the

NPDES permit issues to the discharger,

the

discharge of any contaminant or pollutant by any

person into the waters of the State from a point

source or into a well shall be unlawful.

8.

Sometime in March 2003,

at a time better known to the

Respondent, Redfearn began a construction project to expand its

-4-

---

parking 1~tat its office located at 1480 Route 20 West,

Elizabeth,

Jo Daviess County,

Illinois,

(“Site”)

.

Redfearn was

constructing

additional

parking

and

storage

areas

for

its

equipment

at the Site.

9.

On May

8,

2003,

the Illinois EPA inspected the

construction site and observed that the construction activity was

being conducted on land estimated to be more than one acre and

less than five acres.

The Illinois EPA observed that the Site

did not have any erosion controls in place and that there was

evidence of erosion that had occurred previously.

The slope of

the ravine was deep and erosion was evident.

10.

On June

9,

2003,

the Illinois EPA sent Redfearn a

violation notice for Respondent’s failure to obtain coverage

under the general NPDES storm water permit for construction site

activities

(“storm water NPDES permit”)

for the construction

Site.

11.

On June

16,

2003,

Redfearn submitted to the Illinois

EPA a notice of intent

(“NOl”)

for coverage under the storm water

NPDES permit for the Site.

The NOI submitted by Redfearn

indicated that the total size of the construction site was

approximately five

(5)

acres.

On July 24,

2003,

the Illinois EPA

granted

Redfearn

coverage

under

the

storm

water

NPDES

permit.

-5-

---

l2~ Section 3.315 of the Act,

415 ILCS 5/3.315

(2002),

defines person as follows:

“Person” is any individual, partnership,

co-.

partnership,

firm,

company,

limited liability company,

corporation,

association,

joint stock company,

trust,

estate,

political subdivision state agency or any other

legal entity, or their legal representative,

agent or

assigns.

13.

Redfearn,

a corporation,

is a “person” as that term is

defined in Section 3.315 of the Act,

415 ILCS 5/3.315

(2002)

14.

Redfearn was performing construction activities on the

Site from March 2003 until July 24,

2003, without coverage under

the storm water NPDES permit for construction site activities.

15.

By discharging storm water from its construction Site

without coverage under the storm water NPDES permit, Respondent,

Redfearn, violated Section 12(f)

of the Act,

415 ILCS 5/12(f)

(2002)

and 35

Ill. Adm. Code 309.102(a).

WHEREFORE,

Complainant,

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

respectfully requests that the Board enter an order in favor of

Complainant and against Respondent with respect to this Count

I:

1.

Authorizing a hearing in this matter at which time

Respondent will be required to answer the allegations herein;

2.

Finding that Respondent has caused or allowed a

violation of Section 12(f)

of the Act and 35

Ill. Adm. Code

309.102(a);

-6-

---

3.

Ordering

Respondent

to

cease

and

desist from any

further violations of Section 12(f)

of the Act and 35

Ill. Adm.

Code 309.102(a);

4.

Assessing against Respondent a civil penalty of Ten

Thousand Dollars

($10,000.00) per day for each day that the

violation of Section 12(f)

of the Act and 35

Ill. Adm. Code

309.102(a) continued;

5.

Assessing all costs against Respondent,

including

attorney,

expert witness,

emergency response, and consultant fees

expended by the State in its pursuit of this action; and

6.

Granting such other relief as the Board deems

appropriate and just.

PEOPLE

OF

THE

STATE

OF

ILLINOIS

LISA

MADIGAN

Attorney General

State of Illinois

MATTHEW

J.

DUNN,

Chief

Environmental Enforcement/Asbestos

.tion

Division

BY:

OF COUNSEL

ZEMEHERET BEREKET-AB

Assistant Attorney General

Environmental

Bureau

188

W.

Randolph

St.,

20th

Flr.

Chicago,

IL 60601

(312)

814-3816

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Assistant Attorney Gener~

-7-

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STATE

OF

ILLINOIS

COUNTY

OF

WINNEBAGO)

VERIFICATION

I,

Nancy

Sisson,

being

first

duly

sworn,

on

oath

state:

1.

I am currently employed by the Illinois Environmental Protection Agency

(“Illinois

EPA”) in the Bureau ofWater located in Rockford,

illinois.

2.

I am an Environmental Protection Specialistwith the

Illinois EPA Bureau

ofWater.

3.

I have read the foregoing Verified Complaint

and

am

aware

ofthe contents

thereof.

4.

I have personal

and

direct knowledge ofthe facts alleged in the Verified

Complaint.

5.

The factual matters set forth therein are true

and

correct in substance

and

in fact,

and I

am prepared to testify to the items ofnoncompliance

contained in the Verified Complaint that Ihave personally observed and

know to be

true.

~

me

onthis

~y~’

day of October, 2004

~‘~‘~‘

(f~’~

‘OFFICIAL

SEAL”

Notary

Public

TERESA LABUNSKI

Notary

Public,

State of

Illinois

M~9

Commission

Expires

1/10/2007

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CERTIFICATE OF SERVICE

I, the undersigned, certify that I have

served

the attached Complaint, Notice ofFiling,

and

James William Vincent

1480 Route 20 West

Elizabeth, Illinois 61028

ZEMEHERET

BEREKET-AB

Assistant Attorney General

Environmental Bureau

188

W. Randolph St., 20th Fir.

Chicago, Illinois 60601

G:\Bnvironniental Enforcernent\Z BEREKET-AB\Redfearn

certificate II09.wpd