BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE
STATE
OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
RED SEAL DEVELOPMENT
)
CORPORATION, an Illinois Corporation, and
)
LENZINI EXCAVATING COMPANY,
an
)
Illinois Corporation,
)
)
Respondents,
)
NOTICE OF FILING
PCB No.
(Enforcement - Water)
TO:
See attached service list
(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
fth
CHARDA.P
Assistant Attorney General
Environmental Bureau
69
W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-3776
Electronic Filing - Received, Clerk's Office, July 28, 2008
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CERTIFICATE OF SERVICE
I, RICHARD A. PERRY, an Assistant Attorney General, do certify that I caused
to be mailed this 28th day of July, 2008, the foregoing Complaint and Notice of Filing
upon the persons listed on said notice,
by certified mail.
Electronic Filing - Received, Clerk's Office, July 28, 2008
* * * * * PCB 2009-008 * * * * *
JerylOlson
Seyfarth Shaw LLP
131 S. Dearborn Street, Suite 2400
Chicago, Illinois 60603
John W. Watson
Baker
&
McKenzie LLP
One Prudential Plaza
130
E. Randolph Street, Suite 3700
Chicago, Illinois 60601
SERVICE LIST
Electronic Filing - Received, Clerk's Office, July 28, 2008
* * * * * PCB 2009-008 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
RED SEAL DEVELOPMENT
)
CORPORATION, an Illinois corporation, and
)
LENZINI EXCAVATING COMPANY,
an
)
Illinois corporation.
)
)
Respondent.
)
COMPLAINT
PCB No.
(Enforcement - Water)
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 the Respondents, RED SEAL
DEVELOPMENT CORPORATION, an Illinois corporation, and LENZINI EXCAVATING
COMPANY, 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).
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to
Sectio~
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. § 1342(b)(7).
3.
At all times relevant to this Complaint, Respondent Red Seal Development Corp.
("Red Seal") was and is an Illinois corporation in good standing with the State
of Illinois.
4.
At all times relevant to this Complaint, Respondent Lenzini Excavating Company
("Lenzini") was and is an Illinois corporation in good standing with the State
of Illinois.
5.
At all times relevant to this Complaint, Respondent Red Seal was the owner of a
parcel
ofland of approximately 14.24 acres in size and known as the "Deer Park Estates". This
land was located at the intersection
of Long Grove Road and Quentin Road in the City of Deer
Park, Lake County, Illinois (the "Site").
6.
On October 4, 2006, the Illinois EPA sent violation notices to the Respondents
alleging the stormwater violations
of the Act described herein, pursuant to Section 31 of the Act,
415 ILCS 5/31 (2006). On October 31, 2006, the Illinois EPA sent a violation notice to
Respondent Red Seal alleging the failure
to obtain a construction permit violation of the Act
described herein, pursuant
to Section 31 of the Act, 415 ILCS 5/31 (2006). The Illinois EPA met
with representatives
of Respondent Lenzini on November 29,2006, and with representatives of
Respondent Red Seal on December 5, 2006. On January 17, 2007, the Illinois EPA sent notices
to the Respondents rejecting their proposed compliance commitment agreements for stormwater
violations, and on February
8, 2007 the Illinois EPA sent a notice to Respondent Red Seal
rejecting its proposed compliance commitment agreement for the failure
to obtain a construction
permit violation. On August
17, 2007, the Illinois EPA sent notices of intent to pursue legal
action to the Respondents.
7.
The Site is bordered by wetlands to the south and to the east (the "Wetlands").
8.
An unnamed tributary of Buffalo Creek flows near the northwest comer of the
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Site (the "Tributary").
9.
At all times relevant to this Complaint, Respondent Red Seal was engaged in the
construction of a residential subdivision at the Site.
10.
Red Seal hired Respondent Lenzini as a contractor for its construction work at the
Site. Inits contract with Red Seal, Lenzini agreed to carry out soil excavation activities at the
Site, including topsoil stripping, deep-soil cutting, and topsoil stockpiling, and to install silt
fences, a detention pond, and certain other erosion/runoff control measures.
11.
Some time in 2006, on a date better known to the Respondents, Lenzini signed a
contractor certification statement with respect to the Site, stating that Lenzini "understand[s] the
terms
of conditions of the general National Pollutant Discharge Elimination System (NPDES)
permit (ILRI0) that authorizes the storm water discharges associated with industrial activity
from the construction site."
12.
On a date or dates better known to the Respondents, but prior to August 24, 2006,
the Respondents caused or allowed the stripping, grading and disturbing
of the soil that covered
most
of the Site. This disturbed soil covering most of the Site was exposed and unstabilized.
The soil remained in a disturbed, exposed, and unstabilized condition during a period of time
beginning no later than August 24, 2006, and continuing until at least September 11, 2006, and
on other dates better known to the Respondents.
13.
On a date or dates better known to the Respondents, but prior to August 24,2006,
the Respondents created or allowed the creation of a large stockpile of soil located in the
northern portion
of the Site (the "Soil Stockpile").
14.
The soil constituting the Soil Stockpile was exposed and unstabilized. The Soil
Stockpile remained in an exposed and unstabilized condition during a period
of time beginning
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no later than August 24, 2006, and continuing until at least September
11,
2006, on dates better
known to the Respondents.
15.
During a period
of time beginning no later than August 24,2006, and continuing
until at least September 11, 2006,
on dates better known to the Respondents, the exposed and
unstabilized soil covering the Site, including the Soil Stockpile, was located in such a place and
manner as to make it likely that this soil would be carried
by stormwater runoff into the
Wetlands
or the Tributary.
16.
On August 24, 2006, on September
11,
2006, and on other dates better known to
the Respondents, stormwater runoff carried exposed soil from the Site away from the Site at its
northwestern comer. This
runoff exiting from the northwestern part of the Site had a tan color
due to the heavy concentrations
of soil it contained, and the contaminated runoff traveled
through a series of conveyances until it reached the Tributary.
17.
At the point when the sediment-laden
runoff from the Site entered the Tributary, it
changed the color
of the entire width of the Tributary from a naturally occurring color to a strong
tan color. The Tributary continued to have this tan color for a substantial distance downstream
from the point
of confluence.
18.
The flow
of sediment-laden runoff from the Site into the Tributary caused
turbidity in the Tributary.
19.
On August 24,2006, on September 11,2006, and on other dates better known to
the Respondents, stormwater
runoff carried exposed soil from the Site away from the Site at its
southeastern comer. This southeastern
runoffhad a strong tan color due to the heavy
concentrations
of soil it contained. After exiting the Site, this contaminated runoff traveled
downhill and into the Wetlands.
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20.
On September 11, 2006, and on other dates better known to the Respondents,
stonnwater runoff carried exposed soil from the Site away from the Site
at various points along
its southern edge. This southern runoff had a strong tan color due to the heavy concentrations
of
soil it contained. After exiting the Site, this contaminated runoff traveled directly into the
Wetlands.
21.
The flow
of sediment-laden runoff from the Site into the Wetlands caused a
change
of color in the Wetlands.
22.
The flow
of sediment-laden runoff from the Site into the Wetlands caused
turbidity in the Wetlands.
23.
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
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.
24.
Section 3.315
of the Act, 415 ILCS 5/3.315 (2006), provides the following
definition:
"Person" is any individual, partnership, co-partnership, finn, 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.
25.
The Respondents, Red Seal and Lenzini, are corporations, and are therefore each
a "person"
as that tenn is defined in Section 3.315 of the Act, 415 ILCS 5/3.315 (2006).
26.
Section 3.165
of the Act, 415 ILCS 5/3.165 (2006), provides the following
definition:
"Contaminant" is any solid, liquid or gaseous matter, any odor, or any fonn
of
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energy, from whatever source.
27.
Soil and sediment, and stormwater runoff containing soil and sediments, are
"contaminants" as that term is defined in Section 3.165
of the Act, 415 ILCS 5/3.165 (2006).
28.
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 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.
29.
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.
30.
The Tributary and the Wetlands are "waters"
ofthe State of Illinois as that term is
defined in Section 3.550
of the Act, 415 ILCS 5/3.550 (2006).
31.
During a period commencing no later than August 24, 2006, and continuing until
at least September 11, 2006,
and on dates better known to the Respondents, by failing to install
adequate erosion and stormwater runoff control measures at the Site, the Respondents caused,
threatened and/or allowed excessive soil- and sediment-laden
runoff from its soil grading and
disturbing activities at the Siteto discharge into the Tributary and the Wetlands. Such soil
and/or sediment altered,
or would tend to alter, the physical or biological properties of the
Tributary and/or the Wetlands 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
and/or the Wetlands harmful, detrimental or injurious to public health or welfare; or to domestic,
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recreational, or other legitimate uses; or to wild animals, birds, fish, and other aquatic life. The
Respondents therefore caused, threatened, or allowed the discharge
of contaminants so as to
cause or tend to cause water pollution in violation
of Section 12(a) of the Act, 415 ILCS
5/12(a)(2006).
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
request.s that the Board enter an order against the Respondents, Red Seal and Lenzini, 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) ofthe Act, 415 ILCS
5/12(a)(2006);
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);
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 of the Respondents 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 ofthis action, including attorney,
expert witness, and consultant fees; and
6.
.Granting such other relief as the Board deems appropriate and just.
COUNT II
OFFENSIVE CONDITIONS
1.-30. The Complainant realleges and incorporates by reference herein paragraphs 1
through 30
of Count I as paragraphs 1 through 30 of this Count II.
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31.
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").
32.
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.
33.
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
debris, visible oil, odor, plant or algal growth, color or turbidity
of other
than natural origin
....
34.
By causing, threatening, or allowing the discharge of contaminants into the
Tributary and the Wetlands that caused unnatural turbidity and color in the Tributary and the
Wetlands, the Respondents caused a violation
of Section 302.203 of the Board Water Pollution
Regulations,
35 Ill. Adm. Code 302.203, and thereby also 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 in favor
of the Complainant and against the Respondents,
Red Seal and Lenzini, 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 the Respondents have violated Section 12(a) ofthe Act, 415 ILCS
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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 of the Respondents a civil penalty of Fifty Thousand
Dollars ($50,000.00) for each and every violation
of the Act and the Board Water Pollution
Regulations, with an additional penalty
ofTen Thousand Dollars ($10,000.00) against each of
the Respondents 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 ofthis action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT III
WATER POLLUTION HAZARD
1.-30. The Complainant realleges and incorporates by reference herein paragraphs 1
through 30
of Count I as paragraphs 1 through 30 of this Count III.
31.
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.
32.
By depositing soil at the Site in such place and manner described in paragraphs
11-14 above, the Respondents created a situation in which soil and sediments, which are
contaminants as defined
by the Act, were likely to be carried by stormwater runoff into the
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Tributary and the Wetlands. The Respondents therefore created 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 OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondents, Red Seal and Lenzini, 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
51l2(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 ofthe Respondents a civil penalty of Fifty Thousand
Dollars ($50,000.00) each for each and every violation
of the Act, with an additional penalty of
Ten Thousand Dollars ($10,000.00) against each of the Respondents 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
IV
NPDES PERMIT VIOLATIONS AS TO DEFENDANT RED SEAL -
FAILURE
TO IMPLEMENT THE SWPPP
1.-30. Complainant realleges and incorporates by reference herein paragraphs 1 through
30
of Count I as paragraphs 1 through 30 of this Count
N.
31.
Section 12(f) of the Act, 415 ILCS
5/12(f)(2006),
provides, in pertinent part, as
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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....
32.
Section 309.102(a) of the 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.
33.
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
regulated
by 40 CFR § 122.26, which requires a person to obtain a NPDES permit and to
implement a storm water pollution prevention plan ("SWPPP") before discharging stormwater in
the course
of engaging in certain construction activities.
34.
In pertinent part, 40
CFR § 122.26(a) provides as follows:
(a)
Permit requirement.
(1)
Prior to October
1, 1994, discharges composed entirely of storm
water shall not be required to obtain a NPDES permit except:
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*
*
*
*
(ii)
A discharge associated with industrial activity...
35.
In pertinent part, 40 CFR § 122.26(b) provides as follows:
(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....
36.
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 § 122.2(b), and the stormwater discharges from the Site are a "discharge
associated with industrial activity"
as that phrase is defined in 40 CFR § 122.26(a).
37.
Stormwater discharges from construction sites are governed
by a general permit
that allows such discharges, provided that certain conditions are met. The Illinois EPA issued
this general stormwater permit as the "General NPDES Permit No. ILR10" or "General NPDES
Permit For Storm Water Discharges From Construction Site Activities", on May 30,2003 (the
"General Stormwater Permit").
38.
On July 5,2006, the Illinois EPA issued to Red Seal a Notice
of Coverage,
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detennining that Red Seal'sactivities at the Site were covered by the General Stonnwater
Pennit. At all times relevant to this Complaint, the construction activities at the Site were
governed
by the General Stonnwater Pennit.
39.
Part VI.A. of the General Stonnwater Pennit provides as follows:
The pennittee must comply with all conditions of this pennit.
40.
Part IV. ofthe General Stonnwater Pennit provides as follows:
A stonn water pollution prevention plan shall be developed for each construction
site covered
by the pennit. ... Facilities must implement the provisions of the
stonn water pollution prevention plan required under this part as a condition
of
this pennit.
41.
Red Seal wrote and adopted a SWPPP for its construction activities at the Site.
Red Seal's SWPPP stated that soil striping, grading, and stockpiling should not take place at the
Site prior to the construction and installation
of a stabilized detention pond containing a
perforated riser.
42.
As
of August 24, 2006, the Respondents had not constructed or installed at the
Site a stabilized detention pond containing a perforated riser at the Site.
43.
By failing to implement its SWPPP, Respondent Red Seal thereby violated Part
IV.
of the General Stonnwater Pennit. Compliance with Part IV. is a condition of the General
Stonnwater Pennit.
By violating Part IV. Of the General Stonnwater Pennit, Respondent Red
Seal 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,
Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent Red Seal, on this Count IV:
1.
Authorizing a hearing in this matter at which time the Respondent Red Seal will
be required to answer the allegations herein;
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2.
Finding that the Respondent has violated Part IV. of the General Stonnwater
Pennit, Section l2(f) of the Act, 415 ILCS 5/12(f)(2006), and Section 309.l02(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.
of the General Stonnwater Pennit, 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)(I) 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 V
CONSTRUCTING WITHOUT A PERMIT AS TO RESPONDENT RED SEAL
1.-30. Complainant realleges and incorporates by reference herein paragraphs 1 through
30
of Count I as paragraphs 1 through 30 of this Count V.
31.
Section 12(b)
of the Act, 415 ILCS 5/12(b)(2006), provides, in pertinent part, as
follows:
No person shall:
(b)
Construct, install,
or operate any equipment, facility, vessel, or aircraft
capable
of causing or contributing to water pollution, or designed to
prevent water pollution,
of any type designated by Board regulations,
without a
pennit granted by the Agency, or in violation of any conditions
imposed by such pennit.
*
*
*
*
32.
Section 309.202(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
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309.202(a), provides as follows:
Except for treatment works or wastewater sources which have or will have
discharges for which NPDES Permits are required, and for which NPDES Permits
have been issued
by the Agency:
a)
No person shall cause or allow the construction of any new treatment
works, sewer or wastewater source
or cause or allow the modification of
any existing treatment works, sewer or wastewater source without a
construction permit issued
by the Agency, except as provided in paragraph
(b).
33.
Section 301.265
of the Board Water Pollution Regulations, 35
Ill.
Adm. Code
301.265, provides the following definition:
"Construction" means commencement
of on-site fabrication, erection, or
installation
of a treatment works, sewer, or wastewater source; or the reinstallation
at a new site
of any existing treatment works, sewer, or wastewater source.
34.
Section 301.390
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
301.390, provides the following definition:
"Sewer" means a stationary means
of transport or stationary system of transport,
excluding natural waterways, constructed and operated for the purpose
of
collecting and transporting wastewater or land runoff, or both.
35.
On a date or dates better known to the Respondents, but after September
22,2006
and prior to October 13,2006, Respondent Red Seal caused and/or allowed the construction
and/or installation
of a sanitary sewer at the Site (the "Sanitary Sewer").
36.
At no point during or prior to the installation and/or construction of the Sanitary
Sewer did Respondent Red Seal possess a permit from the Illinois EPA allowing the installation
or construction
ofthe Sanitary Sewer.
37.
The Sanitary Sewer is equipment or a facility that is capable
of causing or
contributing to water pollution.
38.
The Respondent's installation
of the Sanitary Sewer constitutes "construction" as
15
Electronic Filing - Received, Clerk's Office, July 28, 2008
* * * * * PCB 2009-008 * * * * *
that term is defined in Section 301.390 of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 301.390.
39.
The Sanitary Sewer is a stationary system
of collecting and transporting
wastewater, and is therefore a "sewer" as that term is defined in Section 301.390
of the Board
Water Pollution Regulations,
35 Ill. Adm. Code 301.390.
40.
By constructing the Sanitary Sewer, a piece of equipment and a facility capable of
contributing to water pollution, without a permit from the Illinois EPA, Respondent Red Seal
violated Section 12(b) of the Act, 415 ILCS 5/12(b)(2006) and Section 309.202(a) of the Board
Water Pollution Regulations,
35 Ill. Adm. Code 309.202(a).
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the and against the Respondent, Red Seal, on this
Count
V:
1.
Authorizing a hearing in this matter at which time the Respondent Red Seal will
be required to answer the allegations herein;
2.
Finding that the Respondent Red Seal has violated Section 12(b) of the Act, 415
ILCS 5/12(b)(2006), and Section 309.202(a) of the Board Water Pollution Regulations, 35 Ill.
Adm. Code 309.202(a);
3.
Ordering the Respondent to cease and desist from any further violations of
Section 12(b) of the Act, 415 ILCS 5/12(b)(2006), and Section 309.202(a) of the Board Water
Pollution Regulations, 35 Ill. Adm. Code 309.202(a);
4.
Assessing against Respondent Red Seal a civil penalty of Fifty Thousand Dollars
($50,000.00) each for each and every violation
of the Act and the Board Water Pollution
Regulations, with an additional penalty
of Ten Thousand Dollars ($10,000.00) against the
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Electronic Filing - Received, Clerk's Office, July 28, 2008
* * * * * PCB 2009-008 * * * * *
Respondent 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.
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.il.us
By:
(i)
'.
~eMarie
~.haN.
Cazeau, Chief
~(6J~
Environmental Bureau
Assistant Attorney General
17
Electronic Filing - Received, Clerk's Office, July 28, 2008
* * * * * PCB 2009-008 * * * * *
