BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
)
LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
vs.
)
)
PAR DEVELOPMENT, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
PCB No. 09
(Enforcement - Water)
NOTICE OF FILING
TO:
Warren R. Fuller
Fuller and Berres
69
South Barrington Road
South Barrington, Illinois 60010
Clerk
Illinois Pollution. Control Board
James
R. Thompson Center
100 W. Randolph Street, Ste. 11-500
Chicago, Illinois 60601
PLEASE
TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board a Complaint, Notice
of Filing, and a Certificate of Service on
behalf
of the People of the State of Illinois, a copy of which is attached and herewith served upon
you.
Section 103.204(f) of the Pollution Control Board Procedural Rules, 35 Ill. Adm. Code
1
03.204(f) provides: "Failure to file an answer to this complaint within 60 days may have severe
consequences. Failure to answer will mean that all allegations in the complaint will be taken as
if admitted for purposes of this proceeding. If you have any questions about this procedure,
Electronic Filing - Received, Clerk's Office, March 30, 2009
* * * * * PCB 2009-069 * * * * *
you should contact the hearing officer assigned to this proceeding, the Clerk's Office or an
attorney."
BY:
DATE: March
30, 2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
69 W. Washington
St., 18
th
FIr.
Chicago,
IL
60602
(312) 814-3816
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, March 30, 2009
* * * * * PCB 2009-069 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
v.
PAR DEVELOPMENT, INC.,
an Illinois corporation
Respondent.
)
)
)
)
)
)
)
)
No. 09-
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General
of the State of Illinois, on her own motion and at the request of the Illinois
Environmental Protection Agency, complains of the Respondent, PAR DEVELOPMENT, 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).
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
Clean Water Act
("CWA"), 33 U.S.C. § 1342(b)(7).
3.
At all times relevant to this Complaint, Respondent Par Development, Inc.,
("P AR") was and is an Illinois corporation in good standing with the Illinois Secretary of State.
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4.
At all times relevant to this Complaint, PAR was the owner/developer of a retail
business development project, called Lake Pointe located at the northeast comer
of the
intersection at Algonquin Road and Lakewood Road in Lake in the Hills, McHenry County,
Illinois
("Site").
5.
On September 24, 2004, the Illinois EPA received from PARa Notice ofIntent
("NOI") application for coverage under the NPDES general permit to discharge storm water
from construction site activities.
On October 26, 2004, the Illinois EPA issued Notice of
Coverage Under Construction Site Activity Storm Water General Permit NPDES Permit No.
ILRIOB681.
6.
The total size of the construction Site is approximately 26.3 acres and the closest
receiving water is Exner Marsh, an Illinois protected area. The
NOI indicated that storm water
from the
Site discharges directly to waters of the State, Exner Marsh.
7.
On June 20, 2007, the Illinois EPA conducted an inspection of the construction
Site.
8.
During the June 20, 2007 inspection, the Illinois EPA observed that a pump was
pumping sediment laden water adjacent
to the silt fence, and the sediments were breaching the
silt fence and entering into a pond named Rose's Pond which is located adjacent
to the Site.
Rose's Pond is a tributary to Exner Marsh.
9.
The Illinois EPA also observed some piles of dirt laden with debris as well as a
pile
of broken concrete with rebar adjacent to Rose's Pond and the silt fence. The exposed piles
of soil laden with debris and pile of broken concrete with rebar were placed in a manner which
posed a hazard
to water quality.
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10.
During the June 20, 2007, inspection, the Illinois EPA also observed that the NOI
was not posted and there was no copy of the stonnwater pollution prevention plan ("SWPPP")
available for review at the Site.
11.
On August 15, 2007, the McHenry County Soil and Water Conservation District
("MCSWCD") conducted an inspection of the Site under a delegation agreement with the Illinois
EPA.
12.
During the August 15,2007 inspection, the MCSWCD inspector observed
sediment-laden water being pumped from an area adjacent to the Site where PAR's contractor
was working to widen Algonquin Road. The water was pumped from the area adjacent to the
Site and discharged to the ground on the Site and traveled
300 to 400 feet over bare ground to the
detention basin. From the basin, the water was pumped into a filter bag, which failed to remove
suspended solids from the water. The water then flowed into Exner Marsh.
13.
On July 9,2007, the Illinois EPA sent a violation notice to PAR.
14.
On July 16, 2007, PAR sent its compliance commitment agreement
CCCA")
to
the Illinois
EPA.
Action.
15.
On August 15,2007, the Illinois EPA rejected PAR's CCA.
16.
On March 20, 2008, the Illinois EPA issued a Notice ofIntent to Pursue Legal
17.
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.
'
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18.
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.
19.
PAR Development, Inc. is a corporation, and therefore a "person" as that tenn is
defined in
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006).
20.
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
energy, from whatever source.
21.
Soil and sediment, and stonnwater runoff containing soil and sediments, are each
a
"contaminant" as that tenn is defined in Section 3.165 of the Act, 415 lLCS 5/3.165 (2006).
22.
Section 3.545 of the Act, 415 ILCS 5/3.545 (2006), provides the following
definition:
"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, commercial, industrial, agricultural, recreational, or other
legitimate uses, or to livestock, wild animals, birds, fish,
or other aquatic life.
23.
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.
24.
Rose's Pond and the Exner Marsh are "waters" of the State of Illinois as that tenn
is defined in Section 3.550 of the Act, 415 ILCS 5/3.550 (2006).
4
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25.
From some time prior to June 20,2007, on a date or dates known better to the
Respondent, PAR failed to install adequate erosion and stormwater runoff control measures at
the
Site thereby allowing soil and sediment-laden runoff from its construction site activities to
discharge into Rose's Pond and Exner Marsh, waters
of the State.
26.
Such soil and/or sediment altered, or would tend to alter, the physical or
biological properties of Rose's Pond and Exner Marsh, waters of the State.
27.
By its failure to install adequate erosion and stormwater run-off control measures
at the
Site, Respondent allowed contaminants to enter into water of the State.
28.
By causing, threatening or allowing the discharge of contaminants into waters of
the State, Respondent caused or tended to cause water pollution in Illinois in violation of Section
12(a) of the Act.
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent, Par Development, Inc., on this
Count
I:
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 Section 12(a) of the Act, 415 ILCS
5/12( a)(2006);
3.
Ordering Respondent to cease and desist from any further violations of Section
12(a) of the Act, 415 ILCS 5112(a)(2006);
4.
Assessing against the Respondent 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 the Respondent for each day of violation;
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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 II
WATER POLLUTION HAZARD
1-24.
The Complainant realleges and incorporates
by reference herein paragraphs 1
through 24
of Count I as paragraphs 1 through 24 of this Count II.
25.
Section
12(d) of the Act, 415JLCS 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.
26.
By depositing piles of dirt laden with debris as well as a pile of concrete with
rebars, which are contaminants, at the Site in such place and manner as to create a water
pollution hazard, Respondent violated Section 12(d)
of the Act, 415 ILCS 5112(d) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent, Par Development, Inc., on this
Count II:
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 Section 12(d) of the Act, 415 ILCS
5/12(d) (2006);
3.
Ordering the Respondent to cease and desist from any further violations of
Section 12(d) of the Act, 415 ILCS 5/12(d)(2006);
6
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4.
Assessing against the 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 the Respondent for each day of violation;
5.
Ordering the Respondent, pursuant to Section
~2(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 III
NPDES PERMIT VIOLATION- DISCHARGE OF CONTAMINENTS
1-25.
Complainant realleges and incorporates by reference herein paragraphs 1 through
25 of Count II as paragraphs 1 through 25 of this Count III.
26.
Section 12(f)
of the Act, 415 ILCS 5112(0(2006), provides, in pertinent part, 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 ....
27.
Section 309.102(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a), provides as follows:
NPDES Permit Required
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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.
Stormwater discharges from construction site activities are governed
by a general
permit that allows such discharges.
On October 26, 2004, the Illinois EPA issued coverage to
Respondent under the General
NPDES Permit with the permit number ILRI0B681.
29.
At all times relevant to this Complaint, storm water discharges associated with
construction activities at the Site were governed
by NPDES Permit No. ILRI0B681 issued to
Respondent.
30.
Part VI.A ofNPDES Permit No. ILRI0B681 Permit provides as follows:
The permittee must comply with all conditions of this permit. Any permit
noncompliance constitutes a violation
of Illinois Environmental Protection Act
and the
CW A and is grounds for enforcement action; for permit termination,
revocation and reissuance,
or modification; or for denial of a permit renewal
application.
31.
Part III.C
ofNPDES Permit No. ILRI0B681 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.
32.
By discharging soil and sediment-laden runoff from the Site, PAR violated Part
III.C
ofNPDES Permit No. ILRI OB68 1. Compliance with Part III.C is a condition of the
NPDES Permit No. ILRI0B681.
33.
By violating Part III.C ofNPDES Permit No. ILRI0B681, Respondent PAR also
violated Section 12(f)
of the Act, 415 ILCS 5112(£)(2006) and Section 309.102(a) of the Board
Water Pollution Regulations, 35 Ill. Adm. Code
309.1 02(a).
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WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order in favor
of Complainant and against the Respondent Par
Development, Inc., on this Count III:
1.
Authorizing a hearing in this matter at which time the Respondent PAR will be
required to answer the allegations herein;
2.
Finding that the Respondent has violated Part IILC ofNPDES Permit No.
ILR10B681, Section 12(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 309.1 02( a);
3.
Ordering the Respondent to cease and desist from any further violations of Part
III.C
ofNPDES Permit No. ILR10B681, 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
of Ten Thousand Dollars ($10,000.00) for each day of each 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, inc1udi.ng attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT IV
NPDES PERMIT VIOLATION- FAILURE TO POST NOTIFICATION OF COVERAGE
1-26.
Complainant realleges and incorporates by reference herein paragraphs 1 through
26
of Count III as paragraphs 1 through 26 of this Count IV.
27.
Part ILD.2 of the General Stormwater Permit provides as follows:
A copy
of the letter of notification of coverage or other indication that storm
water discharges from the site are covered under an NPDES permit shall be
9
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posted at the site in a prominent place for public viewing (such as alongside a
building permit).
28.
During the
May 20,2007, and August 15,2007, inspections, a copy of the letter
of notification of coverage was not posted at the Site.
29.
By failing to post the notification of coverage, Respondent PAR violated Part
II.D.2 ofNPDES Permit No. ILRI0B681. Compliance with Part II.D.2 is a condition of the
General Stormwater
Permit.
30.
By violating Part ILD.2 of the NPDES Permit No. ILRI0B681, Respondent PAR
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, Complainant,
PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent
Par Development, Inc., on this
Count
IV:
1.
Authorizing a hearing in this matter at which time the Respondent PAR will be
required to answer the allegations herein;
2.
Finding that the Respondent has violated Part ILD.2 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 309.1 02( a);
3.
Ordering the Respondent to cease and desist from any further violations of Part
II.D.2 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);
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 each violation;
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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
NPDES PERMIT VIOLATION- FAILURE TO HAVE STORM WATER
POLLUTION PREVENTION PLAN AVAILABLE AT THE SITE
1-26.
Complainant realleges and incorporates by reference herein paragraphs 1 through
26
of Count IV as paragraphs 1 through 26 of this Count V.
27.
Part IV.B.l of the General Stormwater Permit provides as follows:
Part IV. Stormwater Pollution Prevention Plans
*
*
*
*
The plan shall be signed in accordance with Part VLG (Signatory Requirements),
and be retained on-site
at the facility which generates the storm water discharge in
.accordance with Part VLE (Duty
to Provide Information) of this permit.
28.
During the June
20,2007, and August 15,2007, inspection, Respondent did not
maintain on
Site a copy of the SWPPP as required by NPDES Permit.
29.
By failing to retain a copy
of the Stormwater Pollution Prevention Plan,
Respondent PAR violated Part IV.B.l
of the General Stormwater Permit. Compliance with Part
IV.B.l is a condition of the General Stormwater Permit.
30.
By violating Part IV.B.l of the General Stormwater Permit, Respondent PAR 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 309.1 02( a)(2006).
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WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent
Par Development, Inc., on this
Count V:
1.
Authorizing a hearing in this matter at which time the Respondent PAR 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 StormwaterPermit, Section 12(f) of the Act, 415 ILCS 5112(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
of Ten Thousand Dollars ($10,000.00) for each day of each violation;
5.
Ordering the Respondent, pursuant to Section 42(f) of the Act, 415 tLCS
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
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6.
Granting such other relief as the Board deems appropriate and just.
Of Counsel:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 West Washington Street, Suite
1800
Chicago, Illinois 60602
(312) 814-3816
(312) 814-2347 - fax
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
Assistant Attorney General
.
G:\Environmental Enforcement\Z BEREKET-AB\PAR DEVELOPMENT\Complaint3-11-09.doc
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------------------------------,
CERTIFICATE OF SERVICE
I,
ZEMEHERET BEREKET -AB, an Assistant Attorney General, do certify that I caused
to be served on this
30
th
day of March 2009, the foregoing Notice of Filing, and a Complaint,
upon Mr. Warren Fuller via Certified Mail by placing same in an envelope bearing sufficient
postage with the
United States Postal Service located at 100 West Randolph Street, Chicago,
Illinois.
ZEMEHERET BEREKET-AB
G:\Environmental Enforcement\Z BEREKET-AB\PAR DEVELOPMENT\NOF&Cert 3-30-09.doc
Electronic Filing - Received, Clerk's Office, March 30, 2009
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