1
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
)
Complainant,
)
)
v.
)
PCB 08-17
)
FELKER PHARMACY, INC., an Illinois
)
(Enforcement-Water)
corporation, and ROD BENNETT
)
CONSTRUCTION, INC., an Illinois
)
corporation,
)
)
Respondents
)
MOTION TO FILE THIRD PARTY COMPLAINT
Rod Bennett Construction, Inc. (Respondent), by and through its attorney, James E. Meason,
files this Motion to File Third Party Complaint pursuant to 35 Ill. Admin. Code 103.206(d),
stating as follows:
1.
The Illinois Pollution Control Board (IPCB) regulations permit a party to file a third-
party complaint upon moving IPCB for leave to file the pleading. 35 Ill. Admin. Code
103.206(d).
2.
The basis for this Motion is that Respondent has a claim that arises out of the occurrences
that are the subject of the proceeding.
3.
In the alternative, pursuant to 35 Ill. Admin. Code 103.206(a), Respondent requests IPCB
to add McClellan Blakemore Architects, Inc. (MBA) and Wendler Engineering Services, Inc.
(Wendler) because a complete determination of the controversy cannot be had without the
presence of the entities.
4.
Moreover, the Illinois Code of Civil Procedure permits a defendant to, through the filing
of a third-party complaint, “bring in as a defendant a person not a party to the action who is or
may be liable to him or her for all or part of the plaintiff’s claim against him or her.” 735 ILCS
5/2-406(b).
5.
The Environmental Protection Act (Act) (415 ILCS 5/1 et seq.) prohibits causing,
threatening, or allowing the discharge of any contaminant into the environment so as to cause or
tend to cause water pollution. 415 ILCS 5/12(a).
6.
The Act prohibits the deposit of any contaminant as to create a water pollution hazard.
415 ILCS 5/12(d).
7.
The Act prohibits the causing, threatening, or allowing of the discharge of any
Electronic Filing - Received, Clerk's Office, February 8, 2008
2
contaminant into the waters of the State without a National Pollution Discharge Elimination
System (NPDES) permit. 415 ILCS 5/12(f).
8.
Respondent incorporates the Complaint in this case by reference. In addition to the
allegations contained in the Complaint, Respondent maintains:
9.
Respondent Felker Pharmacy, Inc. hired Respondent to build a store known as Snyder
Pharmacy Dixon in Dixon, Illinois (project).
10.
Respondent hired McClellan Blakemore Architects, Inc. (MBA) to design the project.
11.
MBA hired Wendler Engineering Services, Inc. (Wendler) to provide engineering
services on the project. It was within Wendler’s scope of services to submit the Notice of Intent
for General Permit to Discharge Wastewater from a Construction Site (NOI) application to the
Illinois Environmental Protection Agency (IEPA). Wendler failed to do so.
12.
Further, because Wendler failed to apply for the NOI, IEPA did not issue a NPDES
permit for the project.
13.
On or about August 26, 2005, an IEPA inspector visited the site and noted the lack of an
NOI or NPDES permit. As a result of that inspection, IEPA referred a regulatory enforcement
case for prosecution.
14.
On or about August 20, 2007, Petitioner filed this case against Respondents, alleging
violations of the Environmental Protection Act and its implementing regulations for water
pollution, creating a water pollution hazard, and failing to obtain an NPDES Permit (i.e.
, 415
ILCS 5/12(a), (d), (f) and 35 Ill. Admin. Code 309.102(a).
15.
Since Wendler did not obtain the NPDES permit, any storm water runoff from the project
also was unpermitted, constituting and causing, threatening, or allowing water pollution and a
water pollution hazard. Such a failure constitutes negligent conduct. Wendler had a duty to
perform its services in a competent fashion, and it failed, thereby breaching its duty.
Consequently, because of that breach of duty, Respondent is a named party in the Complaint and
may incur liability.
16.
MBA had a duty to properly supervise Wendler. MBA failed to properly supervise
Wendler, and therefore breached its duty to Respondent to perform its services in a competent
fashion, thereby breaching its duty to Respondent. Consequently, because of that breach of duty,
Respondent is a named party in the Complaint and may incur liability.
17.
The Joint Tortfeasor Contribution Act (Contribution Act) (410 ILCS 100/1 et
seq.)
provides “where 2 or more persons are subject to liability in tort arising out of the same injury to
person or property . . . there is a right of contribution among them, even though judgment has not
been entered against them . . .” 740 ILCS 100/2(a). Liability under the Act creates the requisite
“liability in tort” for purposes of the Contribution Act. People v. Brockman
, 143 Ill.2d 351, 373
(1991) (recognizing third party Contribution Act claim where original defendant sued under
Electronic Filing - Received, Clerk's Office, February 8, 2008
3
Act); Illinois State Toll Highway Authority v. Amoco Oil Company and Mobil Oil Corp.
, 336
Ill.App.3d 300, 313 (2 Dist. 2003) (applying Contribution Act claim to underlying liability under
Act). Illinois State Toll Highway Authority v. Amoco Oil Company and Mobil Oil Corp., 336
Ill.App.3d at 315-16 (allegation that Act’s joint liability provisions subjected parties to liability
is sufficient to maintain contribution action).
18.
Respondent filed electronically a Third Party Complaint with IPCB on December 7,
2007.
19.
Therefore, Respondent requests IPCB to either allow Respondent to add Wendler and
MBA as third party respondents retroactively, using the previously filed complaint, or in the
alternative, order the Petitioner to add Wendler and MBA as respondents to this case.
Respectfully submitted,
Rod Bennett Construction, Inc., Respondent
By:
James E. Meason
James E. Meason
Attorney at Law
113 W. Main Street
Rockton, IL 61072-2416
(815) 624-6517
VERIFICATION
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure,
the undersigned certifies that the statements set forth in this instrument are true and correct,
except as to matters therein stated to be on information and belief and as to such matters the
undersigned certifies as aforesaid that he verily believes the same to be true.
Rod Bennett Construction, Inc., Respondent
By:
Rod Bennett
c:\my docs\law\bennett\felker\motion to add third party
Electronic Filing - Received, Clerk's Office, February 8, 2008
4
CERTIFICATE OF SERVICE
Pursuant to Supreme Court Rule 12, I certify that on December 28, 2007, I sent via U.S. mail
from Rockton, Illinois, at 3:00 p.m. or via electronic filing as indicated the Motion to File Third
Party Complaint to the following persons:
Illinois Pollution Control Board (electronic filing)
100 W. Randolph
Suite 11-500
Chicago, Illinois 60601
Bradley P. Halloran, Esq.
Hearing Officer, Illinois Pollution Control Board
100 W. Randolph
Suite 11-500
Chicago, Illinois 60601
Stephen J. Sylvester, Esq.
Assistant Attorney General
Environmental Bureau
69 W. Washington Street, Suite 1800
Chicago, IL 60602
Eric D. Morrow, Esq.
Smith Hahn Morrow & Floski, P.C.
129 S. Fourth Street
P.O. Box 10
Oregon, IL 61061-0010
Rod Bennett Construction, Inc.
By:
James E. Meason
Respondent’s Attorney
Electronic Filing - Received, Clerk's Office, February 8, 2008
1
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
)
Complainant,
)
)
v.
)
PCB 08-17
)
FELKER PHARMACY, INC., an Illinois
)
(Enforcement-Water)
corporation, and ROD BENNETT
)
CONSTRUCTION, INC., an Illinois
)
corporation,
)
)
Respondents,
)
)
v.
)
)
MCCLELLAN BLAKEMORE
)
ARCHITECTS, INC., an Illinois
)
corporation, and WENDLER
)
ENGINEERING SERVICES,
)
INC., an Illinois corporation
)
)
Third Party Respondents.
)
THIRD PARTY COMPLAINT
Rod Bennett Construction, Inc. (Respondent), by and through its attorney, James E. Meason,
files this Third Party Complaint pursuant to the Illinois Code of Civil Procedure (Code),
specifically 735 ILCS 5/2-406(b), stating as follows:
1.
The Code permits a defendant to, through the filing of a third-party complaint, “bring in
as a defendant a person not a party to the action who is or may be liable to him or her for all or
part of the plaintiff’s claim against him or her.” 735 ILCS 5/2-406(b).
2.
The Environmental Protection Act (Act) (415 ILCS 5/1 et seq.) prohibits causing,
threatening, or allowing the discharge of any contaminant into the environment so as to cause or
tend to cause water pollution. 415 ILCS 5/12(a).
3.
The Act prohibits the deposit of any contaminant as to create a water pollution hazard.
415 ILCS 5/12(d).
4.
The Act prohibits the causing, threatening, or allowing of the discharge of any
contaminant into the waters of the State without a National Pollution Discharge Elimination
System (NPDES) permit. 415 ILCS 5/12(f).
Electronic Filing - Received, Clerk's Office, February 8, 2008
2
5.
Respondent incorporates the Complaint in this case by reference and attaches a copy of
the Complaint to this Third Party Complaint. In addition to the allegations contained in the
Complaint, Respondent maintains:
6.
Respondent Felker Pharmacy, Inc. hired Respondent to build a store known as Snyder
Pharmacy Dixon in Dixon, Illinois (project).
7.
Respondent hired McClellan Blakemore Architects, Inc. (Third Party Respondent MBA)
to design the project.
8.
Respondent MBA hired Wendler Engineering Services, Inc. (Third Party Respondent
Wendler) to provide engineering services on the project. It was within Third Party Respondent
Wendler’s scope of services to submit the Notice of Intent for General Permit to Discharge
Wastewater from a Construction Site (NOI) application to the Illinois Environmental Protection
Agency (IEPA). Third Party Respondent Wendler failed to do so.
9.
Further, because Third Party Respondent failed to apply for the NOI, IEPA did not issue
a NPDES permit for the project.
10.
On or about August 26, 2005, an IEPA inspector visited the site and noted the lack of an
NOI or NPDES permit. As a result of that inspection, IEPA referred a regulatory enforcement
case for prosecution.
11.
On or about August 20, 2007, Petitioner filed this case against Respondents, alleging
violations of the Environmental Protection Act and its implementing regulations for water
pollution, creating a water pollution hazard, and failing to obtain an NPDES Permit (i.e.
, 415
ILCS 5/12(a), (d), (f) and 35 Ill. Admin. Code 309.102(a).
12.
Since Third Party Respondent Wendler did not obtain the NPDES permit, any storm
water runoff from the project also was unpermitted, constituting and causing, threatening, or
allowing water pollution and a water pollution hazard. Such a failure constitutes negligent
conduct. Third Party Respondent Wendler had a duty to perform its services in a competent
fashion, and it failed, thereby breaching its duty. Consequently, because of that breach of duty,
Respondent is a named party in the Complaint and may incur liability.
13.
Third Party Respondent MBA had a duty to properly supervise Third Party Respondent
Wendler. Third Party Respondent MBA failed to properly supervise Third Party Respondent
Wendler, and therefore breached its duty to Respondent to perform its services in a competent
fashion, thereby breaching its duty to Respondent. Consequently, because of that breach of duty,
Respondent is a named party in the Complaint and may incur liability.
14.
The Joint Tortfeasor Contribution Act (Contribution Act) (410 ILCS 100/1 et seq.)
provides “where 2 or more persons are subject to liability in tort arising out of the same injury to
person or property . . . there is a right of contribution among them, even though judgment has not
been entered against them . . .” 740 ILCS 100/2(a). Liability under the Act creates the requisite
“liability in tort” for purposes of the Contribution Act. People v. Brockman
, 143 Ill.2d 351, 373
Electronic Filing - Received, Clerk's Office, February 8, 2008
3
(1991) (recognizing third party Contribution Act claim where original defendant sued under
Act); Illinois State Toll Highway Authority v. Amoco Oil Company and Mobil Oil Corp.
, 336
Ill.App.3d 300, 313 (2 Dist. 2003) (applying Contribution Act claim to underlying liability under
Act). Illinois State Toll Highway Authority v. Amoco Oil Company and Mobil Oil Corp., 336
Ill.App.3d at 315-16 (allegation that Act’s joint liability provisions subjected parties to liability
is sufficient to maintain contribution action).
15.
Therefore, Respondent requests the Illinois Pollution Control Board (IPCB) to find Third
Party Respondent Wendler and Third Party Respondent MBA liable under the Contribution Act
or under an indemnification theory, impose an appropriate sanction against them, and impose
any other relief IPCB deems appropriate.
Respectfully submitted,
Rod Bennett Construction, Inc., Respondent
By:
James E. Meason
James E. Meason
Attorney at Law
113 W. Main Street
Rockton, IL 61072-2416
(815) 624-6517
VERIFICATION
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure,
the undersigned certifies that the statements set forth in this instrument are true and correct,
except as to matters therein stated to be on information and belief and as to such matters the
undersigned certifies as aforesaid that he verily believes the same to be true.
Rod Bennett Construction, Inc., Respondent
By:
Rod Bennett
c:\my docs\law\bennett\felker\third party complaint
Electronic Filing - Received, Clerk's Office, February 8, 2008
4
CERTIFICATE OF SERVICE
Pursuant to Supreme Court Rule 12, I certify that on December 7, 2007, I sent via regular mail
from Rockton, Illinois, at 3:00 p.m. the enclosed documents to the following persons:
Illinois Pollution Control Board
100 W. Randolph
Suite 11-500
Chicago, Illinois 60601
Stephen J. Sylvester, Esq.
Assistant Attorney General
Environmental Bureau
69 W. Washington Street, Suite 1800
Chicago, IL 60602
Eric D. Morrow, Esq.
Smith Hahn Morrow & Floski, P.C.
129 S. Fourth Street
P.O. Box 10
Oregon, IL 61061-0010
Rod Bennett Construction, Inc.
By:
James E. Meason
Respondent’s Attorney
Electronic Filing - Received, Clerk's Office, February 8, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
FELKER PHARMACY, INC., an Illinois
corporation, and ROD BENNETT
CONSTRUCTION, INC., an Illinois
corporation,
Respondents.
PCB No.
(Enforcement- Water)
COMPLAINT
Complainant, People of the State of Illinois, b
y
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 Respondents, FELKER PHARMACY, INC., an Illinois
corporation, and ROD BENNETT CONSTRUCTION, INC., an Illinois corporation, as follows:
COUNT
I
WATER POLLUTION
1.?
This Count 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 (2006), as to Respondent,
FELKER PHARMACY, INC. ("Felker Pharmacy")
only.
This Count is brought on behalf of the PEOPLE OF THE STATE OF ILLINOIS.
by LISA MADIGAN, Attorney General of the State of
?
on her own motion, pursuant to
the terms and provisions of Section 31(d) of the Act, 415 ILCS 5/31(d) (2006), as to Respondent
Electronic Filing - Received, Clerk's Office, February 8, 2008
ROD BENNETT CONSTRUCTION. INC. ("Bennett Construction' -) only.
3.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415 ILCS 5/4 (2006), and charged, inter
alio,
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(13)(7)(21)07).
4.
At all times relevant to this Complaint, Respondent. Felker Pharmacy was and is
an Illinois corporation in good standing.
5.
At all times relevant to this Complaint, Respondent, Bennett Construction, was
and
is
an Illinois
corporation in good standing.
6.
At all times relevant to this Complaint, Felker Pharmacy is and was the owner of
a commercial development known as Snyder Pharmacy.
7.
At all
times relevant to this complaint, the Snyder Pharmacy
was comprised of
approximately 1.85 acres and located near the intersection of Galena Avenue and Everett Street,
Dixon, Lee County, Illinois ("Site").
8.
At all times relevant to this complaint, Bennett Construction was the general
contractor retained by Felker Pharmacy, and was responsible for the development of the She.
9.
Stormwater run-off from the Site flows to and through a storm sewer that runs
along Hennepin Avenue at the Site. The storm sewer discharges directly to the Rock River.
10.
On August 19, 2005, approximately 3.5 inches of rain fell at the She. As a result
of the precipitation, a large volume of runoff flowed over the Site, cut a channel through the lot
and carried gravel and fine particles, known as fines, into a storm sewer catch basin on the west
side of the Site.
Electronic Filing - Received, Clerk's Office, February 8, 2008
11.
On August 26, 2005, the Illinois EPA inspected the Site. At that time, silt fencing
had been removed at the Site with the
exception of
the
east side.
On
the north and west sides of
the Site, there were no erosion controls present on soil strips. The soil strips had not been
stabilized with vegetative cover. There were no filtering devices on storm sewer inlets to protect
from the incursion of
solids.
12.
On September 15, 2005, there were no filtering devices on storm sewer inlets to
protect from the incursion of solids.
13.
Section 12(a) of the Act. 415 ILCS 5/12(a)( 2006), provides as follows:
No person shall:
a. Cause
or threaten or allow the discharge of any contaminant 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.
14.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006), provides the following
definition:
"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.
15.
Felker Pharmacy, a corporation, is a "person" as that term is defined in Section
3.31 of the Act, 415 ILCS 5/3.315 (2006).
16.
Bennett
Construction, a corporation, is a "person" as that term
is defined
in
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006).
17.
Section 3.165 of the Act, 415 ILCS 513.165 (2006), provides the following
definition:
"CONTAMINANT" is any
cm- gaseous matter, any Dior or any form
3
Electronic Filing - Received, Clerk's Office, February 8, 2008
of energy, from whatever source.
18.
Gravel and fines are "contaminants" as that term is defined in Section 3.165 of the
Act, 415 ILCS 513.165 (2006).
19.
Section 3.550 of the Act, 415 ILCS 5/3.550 (2006), contains the following
definition:
"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.
20.
The Rock River is a '`water" of the State of Illinois as that term is defined in
Section 3.550 of the Act, 415 ILCS 5/3.550 (2006).
21.
Section 3.545 of the Act, 415 ILCS 5/3.545 (2006), provides the following
definition:
"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 create a nuisance of
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.
22.
The lack of adequate erosion control measures at the Site caused, threatened or
allowed gravel and fines erosion from construction site activities to discharge into storm sewers
at the Site which flow to the Rock. River. Such gravel and tines, altered, or threatened to alter,
the physical, thermal, chemical, or radioactive properties of the Rock River; rendered, or were
likely to render, them harmful, detrimental or injurious to wild animals, birds, fish, and other
aquatic lift;
or
created. or
were
likely to create. a nuisance.
23.
From at least August 19, 2005 through at least September 15, 2005, on dates
better known to Respondents, Respondents utilized inadequate erosion control measures at the
Site, which caused, threatened, or allowed gravel and fines-laden stormwater runoff into storm
4
Electronic Filing - Received, Clerk's Office, February 8, 2008
sewers at the Site which flow to the Rock River.
24. By their actions and omissions, Respondents caused, Threatened, or allowed water
pollution, and thereby violated Section 12(a) of the Act, 415 ILCS 5/12(a) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, FELKER PHARMACY, INC. and
ROD BENNETT CONSTRUCTION, INC. on this Count I:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents have violated Section 12(a) of the Act, 415 ILCS
5/12(a) (2006);
). Ordering
the Respondents to cease and desist from any further violations of
Section 12(a) of the Act, 415 ILCS 5/12(a) (2006);
4.
Assessing against Respondents a civil penalty of Fifty Thousand Dollars
($50,000.00) for each and every violation of Section 12(a) of the Act, with an additional penalty
4-
of Ten Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering Respondents to pay all costs, pursuant to Section 42(f) of the Act, 415
ILCS 5/42(f) (2006). including attorney. expert witness. 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.
COUNT
II
CREATING A WATER POLLUTION HAZARD
1-22. Complainant realleges and incorporates by reference herein paragraphs 1 through
12 and paragraphs 14 through 23 of Count t as paragraphs I through 22 of this Count 11.
23. Section 12(d) of the Act, 415 ILCS 5/12(d) (2006). provides as follows:
5
Electronic Filing - Received, Clerk's Office, February 8, 2008
No person shall:
d. Deposit
any contaminant upon the land in such place and manner as to
create a water pollution hazard.
24.
From at least August 19, 2005 through at least September 15, 2005, on dates
better known to Respondents, Respondents caused and/or allowed the placement of gravel and
fines at the Site without adequate erosion control structures in place and allowed gravel and
fines-laden stormwater runoff to impact storm sewers at the Site which flow to the Rock River.
25.
Respondents,
by
their actions alleged herein, deposited
contaminants onto the
land so as to create a water pollution hazard in violation of Section 12(d) of the Act, 415 ILCS
5/12(d) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE
E OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, FELKER PHARMACY, INC. and
ROD BENNETT CONSTRUCTION, INC. on this Count II:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein:
2.
Finding that Respondents have violated Section 12(d) of the Act, 415 ILCS
5/12(d) (2006):
3.
Orderinu, the Respondents to cease and desist from any further violations of
Section 12(d) of the Act, 415 ILCS 5/12(d) (2006);
4.
Assessing against Respondents a civil penalty of Fifty Thousand Dollars
($50,000.00) for each and every violation of Section 12(d) of the Act, with an additional penalty
of "Fen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering Respondents to pay all costs, pursuant to Section 42(f) of the Act, 415
ILCS 5142(t) (2406). including attorney, expert witness, and consultant fees expended by the
6
Electronic Filing - Received, Clerk's Office, February 8, 2008
State in its pursuit of this action: and
6. Granting
such other relief as the Board deems appropriate and just.
COUNT
III
FAILURE TO OBTAIN NPDES PERMIT
1-22. Complainant realleges and incorporates by reference herein paragraphs 1 through
12 and paragraphs 14 through 23 of Count I as paragraphs 1 through 22 of this Count HI.
23.
Section 12(1) of the Act, 415 ILCS 5/12(0 (2006), provides as follows:
No person shall:
(0 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.
24.
The United States Environmental Protection Agency 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.
25.
In pertinent part, 40 CFR
122.26(a) provides as follows:
(a) Permit
requirement.
(9)(i) On
and after October 1,
1994, for discharges composed entirely of
storm water, that are not required by paragraph (a)(I) of this
section to obtain a permit, operators shall be required to obtain a
7
Electronic Filing - Received, Clerk's Office, February 8, 2008
NPDES permit only if:
(B) The discharge is a storm water discharge associated with
small construction activity pursuant to paragraph (b)(15) of
this section;
26.
In pertinent part, 40 CFR 122.26(b) provides as follows:
(b) Definitions.
*
?
*
15) Storm water discharge associated with small construction activity
means the discharge of storm water from:
i) 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
27.
Section 309.102(a) of the Illinois Pollution Control Board ("Board") Water
Pollution Regulations, 35 Ill. Adm. Code 309.102(a), provides as follows:
NPDES
Permit Required
a) Except
as in compliance with the provisions of the Act, Board regulations,
and the CWA, and the provisions and conditions of the NPDES permit
issued 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.
28.
On May 1, 2005, construction activities were commenced at the Site, which
included excavating and Grading, without having
first obtained an
NPDES stormwater general
permit.
8
Electronic Filing - Received, Clerk's Office, February 8, 2008
29.
On October 3, 2005, the Illinois EPA issued to Snyder Drug Stores NPDES
stonnwater general permit no. ILRI 0D924 for commercial development known as Felker-Snyder
Pharmacy ("NPDES
Permit No.
ILR10D924"). On
April 12.
2006, NPDES Permit No.
ILR I 0D924 was terminated by the Illinois EPA after construction activities at the Site were
completed and final stabilization was achieved.
30.
By
causing
or allowing over one acre and Jess than five acres of land at the Site to
be disturbed without first obtaining coverage under the NPDES storm water general permit for
construction site activities prior to initiating such activities at the Site, Respondents violated
Section 12(f)
of the
Act,
415
ILCS 5112(f) (2006),
and Section
309.102(a) of the Board Water
Pollution Regulations,
35 III. Adm. Code 309.102(a).
WHEREFORE. Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, FELKER PHARMACY, INC. and
ROD BENNETT CONSTRUCTION. INC, on this Count III;
1.
?
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
Finding that Respondents have violated Section 12(f) of the Act, 415 ILCS
5/12(f) (2006), and Section 309.102(a) of the Board Water Pollution Regulations. 35 III. Adm.
Code 309.102(a);
3.
Ordering the Respondents to cease and desist from any further violations of
Section 12(f) of the Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a) of the Board Water
Pollution Regulations, 35 111. Adm. Code 309.102(a);
4.
Assessing against Respondents pursuant to Section 42(b)(1) of the Act, a civil
penalty of Ten Thousand Dollars ($10,000.00) for each day of violation of Section 12(f) of the
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Electronic Filing - Received, Clerk's Office, February 8, 2008
Rose
Environmental Bureau
Assistant Attorney General
J
Act and Section 309.102(a) of the Board Water Pollution Regulations:
5.
Ordering Respondents to pay all costs, pursuant to Section 42(1)
of
the Act, 415
ILCS 5/42(f) (2006), including attorney, expert witness. and
consultant fees expended by
the
Slate
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,
by LISA MADIGAN,
Attorney General of the State of Illinois,
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
By:
Of Counsel:
S
I
EPHEN J. SYLVESTER
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago. IL 6060
'fel: (312) 8 I4-20R7
Fax: (312) 814-2347
Email: ssylvesteraatg.state.il.us
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Electronic Filing - Received, Clerk's Office, February 8, 2008