BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CENTERPOINT PROPERTIES TRUST, a
real estate investment trust, and FCL
INVESTORS, INC.,
an Illinois corporation
formerly known
as FCL BUILDERS, INC.,
Respondent,
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PCB No.
(Enforcement - Water)
TO:
See attached service list
NOTICE OF FILING
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have electronically filed with the Office
of
the Clerk of the Pollution Control Board the following Complaint, a copy of which is
attached and hereby served on 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 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.
NOTIFICATION
YOU ARE HEREBY NOTIFIED that financing may
be available through the
Illinois Environmental facilities financing act [20 ILCS 3515/1 et seq.] to correct the
alleged pollution.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney G era
of t
CHARDA.PE
Y
Assistant Attorney General
Environmental Bureau
69
W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-3776
Electronic Filing - Received, Clerk's Office, July 3, 2008
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Bryan E. Keyt
Bell, Boyd
&
Lloyd
LLP
70 W. Madison St., Ste. 3100
Chicago,
IL
60602-4207
SERVICE LIST
Electronic Filing - Received, Clerk's Office, July 3, 2008
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CENTERPOINT PROPERTIES TRUST, a
real estate investment trust, and FCL
INVESTORS, INC.,
an Illinois corporation
formerly known
as FCL BUILDERS, INC.,
Respondent.
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PCB No.
(Enforcement - Water)
COMPLAINT
The Complainant, 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, complains
of the Respondents, CENTERPOINT
PROPERTIES TRUST, a real estate investment trust, and
FCL INVESTORS, INC., an Illinois
corporation formerly known as
FCL BUILDERS, INC., 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 (the "Illinois EPA"), pursuant to Section
31 of the Illinois Environmental Protection Act (the "Act"), 415 ILCS 5/31 (2006).
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 (2006), 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
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Clean Water Act ("CWA"), 33 U.S.c. ยง 1342(b)(7).
3.
At all times relevant to this Complaint, Respondent CenterPoint Properties Trust
("CenterPoint") was and is a real estate investment trust.
4.
At all times relevant to this Complaint, Respondent FCL Investors, Inc. ("FCL")
was known
as FCL Builders, Inc., and was and is an Illinois corporation in good standing with
the State
of Illinois.
5.
At all times relevant to this Complaint, CenterPoint owned the "Center Point
Business Center", a parcel
ofland of approximately 134 acres in size located at the northwest
comer
of the intersection of Interstate 94 and Washington Street in the Village of Gurnee in Lake
County, Illinois (the "Site").
6.
On June 7, 2006, the Illinois EPA sent violation notices to the Respondents
alleging the violations
of the Act described herein, pursuant to Section 31 of the Act, 415 ILCS
5/31 (2006). The Illinois EPA met with representatives
of the Respondents on August 1, 2006.
On September 21, 2006, the Illinois EPA sent notices to the Respondents rejecting their proposed
compliance commitment agreements. On March 20,2007, the Illinois EPA sent notices
of intent
to pursue legal action to the Respondents.
7.
CenterPoint engaged in construction activities at the Site, and hired Respondent
FCL as its construction contractor. FCL was responsible for conducting grading activities at the
Site, and in the process
of conducting grading activities FCL caused soil to be excavated and
disturbed at the Site.
8.
In its contract with CenterPoint, FCL was also specifically given the
responsibility for complying with the Illinois EPA General Stormwater Permit that governed the
Respondents' discharges at the Site, and for implementing the storm water pollution prevention
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plan ("SWPPP") that the Illinois EPA's General Stonnwater Pennit required for the construction
activities at the Site. Furthennore, Part. IV.F.
of the General Stonnwater Pennit requires that
the SWPPP clearly identify every contractor who will be implementing portions
ofthe SWPPP,
and that every such contractor must sign a certification statement in accordance with Part VLG.
of the General Stonnwater Pennit.
9.
Stonnwater run-off from the Site flows into an unnamed tributary of the Des
Plaines River (hereafter tenned the "Tributary"). The Tributary flows from the north along the
western edge
of the Site, and then flows through the southern part ofthe Site, and empties into
the Des Plaines River approximately one (1) mile downstream from the Site.
10.
Stonnwater run-off from the Site also flows into an area
of wetlands that is
located near the southeast
comer of the Site (the "Wetlands"). The Wetlands drain into the
Tributary.
11.
At all times relevant to this Complaint, the Site was divided into eleven (11)
separate lots. Four lots, which were referred to
by the Respondents as "Lot 3," "Lot 7," "Lot 8,"
and
"Lot 9," are the subject of this Complaint. These lots total more than five (5) acres in size.
12.
On April 3, 2006, and on other dates better known to the Respondents, the ground
at Lot 3, Lot 7,
Lot 8, and Lot 9 was disturbed and unstabilized, leaving exposed soil (i.e. soil not
protected
by vegetation or other stabilizing devices) at each of these areas.
13.
During a period
of time commencing no later than April 3, 2006, and continuing
until at least May 12, 2006, and on other dates better known to the Respondents, the soil at Lot 3,
Lot
8, and Lot 9 was in a disturbed and unstabilized state and soil was loose and exposed; large
stockpiles
of soil were present at Lot 3 and Lot 9; and silt fences and/or other barriers located at
Lot 3, Lot 8, and Lot 9 provided only nominal and inadequate protection against this soil being
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carried by stormwater into the Tributary and/or the Wetlands.
14.
On information and belief, the Respondents created the stockpiles of soil and/or
the presence
of the other disturbed and exposed soil at Lot 3, Lot 8, and Lot 9 by depositing the
soil there prior to April 3, 2006, on a date or dates better known to the Respondents.
15.
On April 3, 2006, and on other dates better known to the Respondents, stormwater
runoff carried exposed soil from Lot 7 and Lot 8 through a series
of conveyances (including
trenches and storm drains) until it discharged from a storm sewer outfall (the "Basin B Outfall")
into a detention basin that lies along the western edge-of the Site and that was referred
to by the
Respondents
as "Basin B".
16.
Basin B is constructed out of the Tributary, and lies in the middle of the
Tributary, with the Tributary flowing into and then out
of Basin B. A turbidity barrier is located
within Basin B, between the Basin B Outfall and the remainder
of Basin B (the 'Turbidity
Barrier"). The Turbidity Barrier encloses or is intended to enclose an area
of water around the
Basin B Outfall (the "Basin B Outfall Area"). The Turbidity Barrier is intended
to prevent
contaminants that discharge from the Basin B Outfall and into Basin B from entering into the
Tributary; the Turbidity Barrier therefore is intended to separate the Basin B Outfall Area from
those parts
of Basin B where the Tributary flows into and out of Basin B.
17.
On April 3, 2006, and on other dates better known to the Respondents, the
stormwater runoff from Lot 7 and Lot 8 was causing the Basin B Outfall Area to be filled with
sediments.
18.
On April 3, 2006, and on other dates better known to the Respondents, the
stormwater runoff from Lot 7 and Lot 8 was causing the Basin B Outfall Area
to have a strong
creamy brownish color.
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19.
On April 3, 2006, and on other dates better known to the Respondents, the
Turbidity Barrier was failing to keep the sediments brought
by the stormwater runoff from Lot 7
and Lot 8 contained within the Basin B Outfall Area. Sediment-laden water was escaping the
Basin B Outfall Area and entering the remainder
of Basin B, and then was flowing into the
Tributary.
20.
Sediment-laden water from the Basin B Outfall Area caused turbidity and an
alteration
of the color of the water in the remainder of Basin B. Sediment-laden water from
Basin B in tum caused turbidity and an alteration
of the color of the water in the Tributary.
21.
On April 3, 2006, and April
14, 2006, and on other dates better known to the
Respondents, stormwater runoff carried exposed soil from Lot 9 into Detention Basin D ("Basin
D").
22.
The sediment-laden runoff from Lot 9 caused turbidity and an alteration of the
color
of the water in Basin D.
23.
The Wetlands border Detention Basin D. Sediment-laden water was conveyed
from Basin D and into the Wetlands through a series
of conveyances, including a discharge
device attached to Basin
D.
24.
The flow of sediment-laden water from Basin D into the Wetlands caused
turbidity and an alteration
of the color of the water in the Wetlands.
25.
Lot 3, Lot 7, Lot
8, and Lot 9 were fully stabilized and stormwater violations had
ceased by September 20, 2007.
26.
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 contaminants into the
environment in any State so
as to cause or tend to cause water pollution in
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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.
27.
. Section 3.315
of the Act, 415 ILCS 5/3.315 (2006), provides the following
definition
of the term "person":
"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.
28.
Respondent CenterPoint is a company, corporation, trust, or some other legal
entity, and is therefore a "person" as that term is defined in Section 3.315
of the Act, 415 ILCS
5/3.315 (2006).
29.
Respondent FCL, a corporation, is a "person" as that term is defined in Section
3.315
of the Act, 415 ILCS 5/3.315 (2006).
30.
Section 3.165
of the Act, 415 ILCS 5/3.165 (2006), provides the following
definition
of the term "contaminant":
"Contaminant" is any solid, liquid or gaseous matter, any odor, or any
fo~~
of
energy, from whatever source.
31.
Soil and sediment, and stormwater
runoff that contains soil and sediment, are \
"contaminants" as that term is defined in Section 3.165
of the Act, 415 ILCS 5/3.165 (2006).
32.
Section 3.550
of the Act, 415 ILCS 5/3.550 (2006), contains the following
\
\
definition of the term "waters":
"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.
\
\
33.
The Tributary, the Wetlands, and Basin B are "waters"
of the State of Illinois as
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that term is defined in Section 3.550 of the Act, 415 ILCS 5/3.550 (2006).
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34.
Section 3.545 of the Act, 415 ILCS 5/3.545 (2006), provides the following
definition of the tenn."water pollution":
"Water Pollution" is such alteration
of the physical, thennal, 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 or
render such waters hannful or detrimental or injurious to public health, safety or
welfare, or to domestic, comm.ercial, industrial, agricultural, recreational, or other
legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life.
35.
By failing to install adequate erosion and stonnwater runoff control measures at
the Site, the Respondents caused and/or allowed the discharge
of excessive soil- and sediment-
laden stonnwater
runoff from their soil grading and disturbing activities at the Site into the
Tributary, the Wetlands, and Basin B. Such soil and sediment altered, or would tend to alter, the
physical or biological properties of the Tributary, the Wetlands, and Basin
B,
in such a manner
that the alteration would, or likely would, create a nuisance; or in such a manner that the
alteration would, or likely would, render the Tributary, the Wetlands, and Basin B hannful,
detrimental or injurious to public welfare; or to domestic, recreational, or other legitimate uses;
or to wild animals, birds, fish, and other aquatic life. The Respondents therefore caused or
allowed the discharge of contaminants so as to cause or tend to cause water pollution, and
thereby violated Section 12(a) of the Act, 415 ILCS 5/12(a) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, CenterPoint and
FCL, 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 the Respondents have violated Section 12(a) of the Act, 415 ILCS
5/12(a) (2006);
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3.
Ordering the Respondents to cease and desist from any further violations of
Section l2(a) of the Act, 415 ILCS 5/12(a) (2006);
4.
Assessing against each of the Respondents a civil penalty of Fifty Thousand
Dollars ($50,000.00) for each and every violation
of the Act, with an additional penalty ofTen
Thousand Dollars ($10,000.00) against each Respondent for each day of violation;
5.
Ordering the Respondents pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006),
to pay all costs expended by the State in its pursuit of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT
II
VIOLATION OF WATER QUALITY
STANDARDS
1.-34. Complainant realleges and incorporates by reference herein paragraphs 1 through
34
of Count I as paragraphs 1 through 34 of this Count
II.
35.
The Respondents' discharges at the Site are subject to the Act and the rules and
regulations promulgated by the Illinois Pollution Control Board (the "Board") pursuant to the
Act. The Board'sregulations for
Water pollution are found in Title 35, Subtitle C, Chapter I of
the Illinois Administrative Code ("Board Water Pollution Regulations").
36.
Part 302, Subpart B,
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
Part 302, Subpart B, establishes general use water quality standards for non-specified waters
of
the State of Illinois.
37.
Section 302.203
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
302.203, provides, in pertinent part,
as follows:
Offensive Conditions
Waters
of the State shall be free from sludge or bottom deposits, floating
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debris, visible oil, odor, plant or algal growth, color or turbidity of other
than natural origin
....
38.
The soil- and sediment-laden stormwater discharges from the Site that resulted
from the Respondents' soil-disturbing activities caused unnatural turbidity and color in the
Tributary, the Wetlands, and Basin B.
39.
By causing or allowing the discharge of contaminants into the Tributary, the
Wetlands, and Basin B that caused unnatural turbidity and color in the Tributary, the Wetlands,
and Basin B, the Respondents have violated Section 302.203
of the Board Water Pollution
Regulations,
35
Ill.
Adm. Code 302.203, and have thereby also violated Section 12(a) of the Act,
415 ILCS 5/12(a) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of the Complainant and against the
Respondents, CenterPoint and FCL:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that the Respondents have violated Section 12(a) of the Act, 415 ILCS
5/12(a) (2006), and Section 302.203 the Board Water Pollution Regulations,
35 Ill. Adm. Code
302.203;
3.
Ordering the Respondents to cease and desist from any further violations of
Section 12(a) of the Act, 415 ILCS 5/12(a) (2006), and Section 302.203 the Board Water
Pollution Regulations,
35 Ill. Adm. Code 302.203;
4.
Assessing against each Respondent a civil penalty of Fifty Thousand Dollars
($50,000.00) for each and every violation
of the Act or the Board Water Pollution Regulations,
with an additional penalty
ofTen Thousand Dollars ($10,000.00) against each Respondent for
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each day of violation;
5.
Ordering the Respondents pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit of this action, including attorney,
expert witness, and
consult~t
fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT III
WATER POLLUTION HAZARD
1.-34. Complainant realleges and incorporates by reference herein paragraphs 1 through
34
of Count I as paragraphs 1 through 34 of this Count III.
35.
Section 12(d)
of the Act, 415 ILCS 5/12(d) (2006), provides as follows:
No person shall:
(d)
Deposit any contaminants upon the land in such place and manner so as to
create a water pollution hazard.
36.
By depositing soil
o~
Lots 3,8, and 9 as described in paragraphs 11-13 above, and
by failing to implement adequate erosion and runoff control measures, resulting in soil and
sediment being carried
by stormwater runoff into the Tributary and/or the Wetlands and/or Basin
B, Respondents created a water pollution hazard in violation of Section 12(d) of the Act, 415
ILCS 5112(d) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, CenterPoint and
FCL,
on this Count III:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that the Respondents have violated Section 12(d) of the Act, 415 ILCS
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5/12(d) (2006);
3.
Ordering 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 each Respondent a civil penalty of Fifty Thousand Dollars
($50,000.00) each for each and every violation
of the Act, with an additional penalty ofTen
Thousand Dollars ($10,000.00) against each Respondent for each day of violation;
5.
Ordering the Respondents pursuant to Section 42(f) ofthe Act, 415 ILCS
5/42(f)
(2006), to pay all costs expended by the State in its pursuit of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT IV
VIOLATION OF THE TERMS AND CONDITIONS OF A NPDES PERMIT-
FAILURE TO SIGN THE SWPPP
1.-34. Complainant realleges and incorporates by reference herein paragraphs 1 through
34
of Count I as paragraphs 1 through 34 of this Count IV.
35.
The federal Clean Water Act regulates the discharge
of pollutants from a point
source into navigable waters and prohibits such point source discharges without a NPDES
permit. The United States Environmental Protection Agency ("USEPA") administers the
NPDES program in each State unless the USEPA has delegated the authority to administer the
NPDES program to the State.
36.
The USEPA has delegated the authority to administer the NPDES program
to the
State
of Illinois, conditioned upon its compliance with federal regulations. The State of Illinois
issues NPDES permits through the Illinois EPA. The State
of Illinois' authority to issue NPDES
permits includes issuing permits for the discharge
of stormwater. Stormwater discharges are
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regulated by 40 CFR ยง 122.26, which requires a person to obtain a NPDES pennit and to
implement a stonn water pollution prevention plan ("SWPPP") before discharging stonnwater in
the course
of engaging in certain construction activities.
37.
Section 12(f)
of the Act, 415 ILCS 5/l2(f) (2006), 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 pennit for point source discharges issued
by the Agency under Section
39(b)
of this Act, or in violation of any tenn or condition imposed by such pennit,
or in violation
of any NPDES pennit 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....
38.
Section 309.102(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a), provides as follows:
Except
as in compliance with the provisions of the Act, Board regulations, and the
CWA, and the provisions and conditions
of the NPDES pennit 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.
39.
Federal regulation 40 CFR ยง 122.26(a) provides in pertinent part as follows:
(a)
Permit requirement.
(1)
Prior
to October 1, 1994, discharges composed entirely ofstonn
water shall not be required to obtain a NPDES pennit except:
*
*
*
*
(ii)
A discharge associated with industrial activity...
40..
Federal regulation 40 CFR ยง l22.26(b) provides in pertinent part as follows:
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(b)
Definitions.
*
*
*
*
(14)
Storm water discharge associated with industrial activity means the
discharge from any conveyance that is used for collecting and conveying
storm water and that is directly related to manufacturing, processing or
raw materials storage areas at an industrial plant.
... The following
categories
of facilities are considered to be engaging in "industrial
activity" for purposes
of paragraph (b)(14):
*
*
*
*
(x)
Construction activity including clearing, grading and
excavation, except operations that result in the disturbance
of less
than five acres
of total land area....
41.
Since the Respondents have engaged in construction activity at the Site that has
involved clearing, grading, and excavation
of soil and that has disturbed more than five acres of
total land area, the Respondents' activities at the Site are an "industrial activity" within the
definition of 40 CFR ยง 122.26(b), and the stormwater discharges from the Site are a "discharge
associated with industrial activity" subject to 40 CFR ยง 122.26(a).
42.
On May 30, 2003, the Illinois EPA issued a general stormwater permit identified
as "General NPDES Permit No.
ILRI0" or "General NPDES Permit For Storm Water
Discharges From Construction Site Activities" (the "General Stormwater Permit").
43.
On July
1, 2006, the Illinois EPA issued to CenterPoint a Notice of Coverage,
determining that CenterPoint'sactivities at the Site were covered by the General Stormwater
Permit. The construction activities at the Site were governed
by the General Stormwater Permit
at all times relevant to this Complaint.
44.
Part VI.A
of the General Stormwater Permit governing the Respondent's
activities at the Site provides as follows:
The permittee must comply with all con,ditions
of this permit.
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45.
Part IV. of the General Stormwater Permit provides as follows:
A storm water pollution prevention plan shall be developed for each construction
site covered by the permit.
... Facilities must implement the provisions of the
storm water pollution prevention plan required under this part as a condition
of
this permit.
46.
Part IV.B.l.
of the General Stormwater Permit provides as follows:
The plan shall be signed in accordance with Part VI.G (Signatory Requirements),
and be retained on-site at the facility which generates the storm water discharge in
accordance with Part VI.E (Duty to Provide Information)
of this permit.
47.
Part VI.G.
of the General Stormwater Permit further provides as follows:
All Notices
of Intent, storm water pollution prevention plans, reports,
certifications or information....that this permit requires be maintained by the
permittee, shall be signed.
48.
Part V.A.
of the General Stormwater Permit provides as follows:
The permittee shall retain copies
of storm water pollution prevention plans and all
reports and notices required by this permit, and records
of all data used to
complete the Notice
of Intent to be covered by this permit, for a period of at least
three years from the date that the permit coverage expires or is terminated
....
49.
At all times relevant to this Complaint, the permittee, Respondent CenterPoint,
was required by Part V.A.
of the General Stormwater Permit to retain copies of its SWPPP.
Since Part V.A.
of the General Stormwater Permit requires that the permittee retain a copy of the
SWPPP, the SWPPP is therefore a document that must be signed pursuant to Part VI.G.
of the
General Stormwater Permit.
50.
Respondent CenterPoint's SWPPP was not signed
as of April 14,2006.
51.
By failing to sign its SWPPP, Respondent CenterPoint violated Part IV.B-.1. of the
General Stormwater Permit. By violating a condition
of the General Stormwater Permit, the
Respondent CenterPoint thereby also 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 Ill. Adm. Code 309. 102(a).
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WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondent CenterPoint on this
Count IV:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that the Respondent has violated Part IV.B.1. of the General Stormwater
Permit, Section 12(f) of the Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a) of the Board
Water Pollution Regulations,
35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondent to cease and desist from any further violations of Part
IV.B.1. of the General Stormwater Permit, Section 12(f) ofthe Act, 415 ILCS 5/12(f) (2006),
and Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
Assessing against the Respondent a civil penalty ofTen Thousand Dollars
($10,000.00) for each day
of violation;
5.
Ordering the Respondent pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT V
VIOLATION OF TERMS AND CONDITIONS OF A NPDES PERMIT-
FAILURE TO STABILIZE THE CONSTRUCTION SITE AFTER CONSTRUCTION
ACTIVITIES HAVE HALTED
1.-34. Complainant realleges and incorporates by reference herein paragraphs 1 through
34 of Count I as paragraphs 1 through 34 of this Count V.
35.-45. Complainant realleges and incorporates by reference herein paragraphs 35
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through 45 of Count IV as paragraphs 35 through 45 of this Count V.
46.
Part IV.D.2.a.(i) of the General Stormwater Permit provides, in pertinent part, as
follows:
*
*
*
*
Except as provided in paragraphs (A) and (B) below, stabilization measures shall
be initiated
as soon as practicable in portions of the site where construction
activities have temporarily or permanently ceased, but in no case more than
14
days after the construction activity in that portion of the site has temporarily or
permanently ceased.
47.
Construction activities at Lot 3, Lot
8, and Lot 9 of the Site had temporarily or
permanently ceased
by April 3, 2006 or an earlier date better known to the Respondent, and these
construction activities remained temporarily or permanently ceased until at least April 14,2006
or a later date better known to the Respondent.
48.
On information and belief, stabilization measures were not initiated
at Lot 3, Lot
8, and Lot 9 as soon as practicable after the temporary or permanent cessation of construction
activities
at these locations.
49.
CenterPoint failed to commence stabilization measures at Lot
3, Lot 8, and Lot 9
as soon as practicable after the temporary or permanent cessation of construction activities at
these locations constitutes a violation
of Part IV.D.2.a.(i) of the General Stormwater Permit.
Compliance with Part IV.D.2.a.(i) is a condition
of the Permit. By violating a condition of the
General Stormwater Permit, the Respondent also thereby 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 Ill.
Adm. Code 309.102(a).
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WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondent CenterPoint on this
Count
V:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required
to answer the allegations herein;
2.
Finding that the Respondent has violated Part IV.D.2.a.(i) of the General
StormwaterPermit, Section 12(f)
of the Act, 415 ILCS 5/12(f)(2006), and Section 309.102(a) of
the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondent to cease and desist from any further violations of Part
IV.D.2.a.(i)
ofthe General Stormwater Permit, Section 12(f) of the Act, 415 ILCS 5/12(f)(2006),
and Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
Assessing against the Respondent, pursuant to Section 42(b)(1) of the Act, a civil
penalty
ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering the Respondent pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended
by the State in its pursuit of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief
as the Board deems appropriate and just.
COUNT VI
VIOLATION OF TERMS AND CONDITIONS OF A NPDES
PERMIT-
FAILURE TO CARRY OUT REQUIRED INSPECTIONS AND FILE
NONCOMPLIANCE REPORTS
1.-34. Complainant realleges and incorporates
by reference herein paragraphs 1 through
34
of Count I as paragraphs 1 through 34 of this Count VI.
35.-45. Complainant realleges and incorporates
by reference herein paragraphs 35
through 45 of Count IV as paragraphs 35 through 45 of this Count VI.
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46.
Part IV.D.4. of the General Stonnwater Pennit provides in pertinent part, as
follows:
Qualified personnel (provided
by the pennittee) shall inspect disturbed areas of
the construction site that have not been finally stabilized, structural control
measures, and locations where vehicles enter or exit the site at least once every
seven calendar days and within
24 hours of the end of a stonn that is 0.5 inches or
greater or equivalent snowfall....
*
*
*
*
a.
Disturbed areas and areas used for storage of materials that are exposed to
precipitation shall be inspected for evidence of,
or the potential for, pollutants
entering the drainage system. Erosion and sediment control measures identified
in the plan shall be observed to ensure that they are operating correctly. Where
discharge locations or points are accessible, they shall be inspected to ascertain
whether erosion control measures are efIective in preventing significant impacts
to receiving waters
....
*
*
**
c.
A report summarizing the scope of the inspection, name(s) and
qualifications
of personnel making the inspection, the date(s) of the inspection,
major observations relating to the implementation of the stonn water pollution
prevention plan, and actions taken in accordance with paragraph b above shall be
made and retained as part
of the stonn water pollution prevention plan for at least
three years from the date that the pennit coverage expires or is tenninated. The
report shall be signed in accordance with Part
VIG (Signatory Requirements) of
this pennit.
d.
The pennittee shall complete and submit within 5 days an "Incidence of
Noncompliance" (ION) report for any violation of the stonn water pollution
prevention plan observed during an inspection conducted, including those not
required
by the Plan....
*
***
47.
On April 14, 2006, and on May 5,2006, the Respondent submitted to the Illinois
EPA a set of the inspection reports required to be kept by the pennittee under Part IV.D.4.c. of
the General Stonn Water Pennit (the "Inspection Reports").
48.
The Inspection Reports submitted to the Illinois EPA
by the Respondent provided
no documentation showing that at any time prior to April 4, 2006, qualified personnel had
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conducted inspections of the disturbed areas in Lot 3, Lot 8, and Lot 9, as required by Part
IV.D.4. of the Respondent's General Stormwater Permit.
49.
On information and
beliefand based on the submitted Inspection Reports, the
Respondent failed to have qualified personnel conduct inspections of the disturbed areas in Lot
3, Lot 8, and Lot 9 at any time prior to April 4, 2006.
50.
By failing to have disturbed areas of the Site inspected by qualified personnd, and
document such inspections, the Respondent violated Part IV.D.4. of their General Stormwater
Permit.
51.
On information and belief and based on the submitted Inspection Reports, at no
time prior to May 5, 2006 did the Respondent have qualified personnel inspect the accessible
discharge points at Detention Basin B or the Wetlands to determine whether the erosion control
measures in the SWPPP were effective in preventing
runoffpollution.
52.
By failing to have qualified personnel inspect accessible discharge points and
document such inspections, the Respondent violated Part IV.D.4.a. of their General Stormwater
Permit.
53.
The Respondent failed to properly sign the Inspection Reports as they were
required to do
by Part IV.D.4.c. of their General Stormwater Permit.
54.
By failing to properly sign the Inspection Reports, the Respondent violated Part
IV.D.4.c.
of their General Stormwater Permit.
55.
On information and belief, the Respondent had observed violations
of their
SWPPP at least five (5) days before April 3, 2006.
56.
The Respondent did not submit any Incidence
of Noncompliance reports on or
prior to April 3, 2006, as they were required to do by Part IV.D.4.d. of their General Stormwater
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Pennit.
57.
By failing to submit Incidence
of Noncompliance reports after observing
violations
of their SWPPP, the Respondent thereby violated Part IV.DA.d. of their General
Stonnwater Pennit.
By violating a condition of the General Stonnwater Pennit, Respondent
CenterPoint also thereby 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 Ill. Adm. Code 309.102(a).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondent CenterPoint on this
Count
VI:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required
to answer the allegations herein;
2.
Finding that the Respondent has violated Parts IV.DA., 4.a., 4.c., and 4.d. of the
General Stonnwater Pennit, Section 12(f)
of the Act, and Section 309.102(a) ofthe Board Water
Pollution Regulations,
35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondent to cease and desist from any further violations of Parts
IV.DA., 4.a., 4.c., and 4.d.
of the General Stonnwater Pennit, Section 12(f) of the Act, and
Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
. Assessing against the Respondent, pursuant to Section 42(b)(1) of the Act, a civil
penalty
ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering the Respondent pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit
of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
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COUNT VII
DISCHARGE OF A CONTAMINANT INTO WATERS OF THE STATE IN
VIOLATION OF TERMS AND CONDITIONS OF A NPDES PERMIT-
FAILURE TO HAVE REQUIRED CONTRACTOR CERTIFICATIONS
1.-34. Complainant realleges and incorporates by reference herein paragraphs 1 through
34
of Colint I as paragraphs 1 through 34 of this Count VII.
35.-45. Complainant realleges and incorporates
by reference herein paragraphs 35
through 45 of Count IV as paragraphs 35 through 45 of this Count VII.
46.
Part IV.F.!.
of the General Stormwater Permit provides as follows:
1.
The storm water pollution prevention plan must clearly identify for each
measure identified in the plan, the contractor(s) or subcontractors(s) that will
implement the measure. All contractors and subcontractors identified in the plan
must sign a copy
of the certification statement in paragraph 2 below in accordance
with Part VI.G (Signatory Requirements)
of this permit. All certifications must
be included in the storm water pollution prevention plan except for owners that
are acting
as contractor.
47.
As
of April 14, 2006, the Respondent had failed to include contractor and
subcontractor certifications in their SWPPP.
48.
By failing to include contractor or subcontractor certification in the SWPPP, the
Respondent CenterPoint thereby violated Part IV.F.!.
of the General Stormwater Permit. By
violating a condition of the General Stormwater Permit, the Respondent also thereby 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 Ill. Adm. Code 309.102(a).
'WHEREFORE, the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the
BQard enter an order against the Respondent CenterPoint on this
Count VII:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required
to answer the allegations herein;
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2.
Finding that the Respondent has violated Part IV.F.!. of the General Stormwater
Permit, Section 12(f)
of the Act, 415 ILCS 5/12(f)(2006), and Section 309.102(a) of the Board
Water Pollution Regulations,
35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondent to cease and desist from any further violations of Part
IV.F.!.
of the General StormwaterPermit, Section 12(f) of the Act, 415 ILCS 5/12(f)(2006), and
Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
Assessing against the Respondent, pursuant to Section 42(b)(1) of the Act, a civil
penalty
ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering the Respondent pursuant to
~ection
42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit
ofthis action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT VIII
VIOLATION OF TERMS AND CONDITIONS OF A NPDES PERMIT -
DISCHARGES VIOLATING AN APPLICABLE WATER QUALITY STANDARD
1.-34. Complainant realleges and incorporates
by reference herein paragraphs 1 through
34
of Count I as paragraphs 1 through 34 of this Count VIII.
35.-45. Complainant realleges and incorporates
by reference herein paragraphs 35
through 45 of Count IV as paragraphs 34 through 44 of this Count VIII.
46.
Part III.B.
of the General Stormwater Permit provides as follows:
Discharges covered
by this permit, alone or in combination with other sources,
shall not cause or contribute
to a violation of any applicable water quality
standard.
47.
Because the stormwater discharges from the Site caused or contributed to a
change in the color
of the Tributary, the Wetlands, and Basin B, and an increase in the turbidity
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of the Tributary, the Wetlands, and Basin B, during a period commencing no later than Apri13,
2006, and continuing until at least May 12,2006, and on dates better known to the Respondents,
the stormwater discharges from the site caused or contributed to a violation
of the water quality
standard set forth in Section 302.203
of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 302.203
48.
By violating an applicable water quality standard, the Respondents also violated
Part III.B.
of the General Stormwater Permit, and thereby also 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
Ill.
Adm. Code 309.102(a).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, CenterPoint and
FCL, on this Count VIII:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that the Respondents have violated Part III.B. of the General Stormwater
Permit, Section 12(0
of the Act, 415 ILCS 5/12(f)(2006), and Section 309.102(a) of the Board
Water Pollution Regulations,
35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondents to cease and desist from any further violations of Part
III.B.
of the General Stormwater Permit, Section 12(f) of the Act, 415 ILCS 5/12(f)(2006), and
Section 309.102(a)
of the Board Water Pollution Regulations, 35
Ill.
Adm. Code 309.102(a);
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4.
Assessing against each of the Respondents; pursuant to Section 42(b)(1) of the
Act, a civil penalty ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering the Respondents pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit of this action, including attorney,
expert witness, and consultant fees; 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
Of Counsel:
RICHARD
A.
PERRY
Assistant Attorney General
Environmental Bureau
69 W. Washington Street, Suite 1800
Chicago,
IL
60602
Tel: (312) 814-2069
Fax: (312) 814-2347
Email: rperry@atg.state.i1.us
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CERTIFICATE OF SERVICE
I, RICHARD A. PERRY, an Assistant Attorney General, do certify that I caused
to be mailed this 3
rd
day of July, 2008, the foregoing Complaint and Notice of Filing
upon the persons listed on said notice,
by certified mail.
RI HARD
A. PE
Assistant Attorney General
Enviommental Bureau
69 West Washington, 18
th
Floor
Chicago, IL ?0602
312-814-2069
Electronic Filing - Received, Clerk's Office, July 3, 2008
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