(printed on recycled paper)

BEFORE THE ILLINOS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS, )

ex rel.

LISA MADIGAN, Attorney

)

General of the State of Illinois,

)

No. PCB 09-030

)

(Enforcement - Water)

Complainant,

)

)

v.

)

)

MONTALBANO BUILDERS, INC.,

)

an Illinois corporation,

)

)

Respondent.

)

NOTICE OF FILING

TO: Clerk of the Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph Street

Suite 11-500

Chicago, Illinois 60601

Zemeheret Bereket-Ab

Assistant Attorney General

Environmental Bureau North

69 W. Washington Street

Suite 1800

Chicago, Illinois 60602

PLEASE TAKE NOTICE

that on December 31, 2008, the attached documents,

Respondent’s Appearance

and

Respondent’s Answer to Complaint

, were filed with

the Clerk of the Pollution Control Board.

CERTIFICATE OF SERVICE

I,

GLENN C. SECHEN

, an attorney, certify that I have served a copy of the

attached documents by regular mail upon the person(s) referenced above at or before

5:00 p.m. on the 6

th

day of January, 2009.

/s/

Glenn C. Sechen

Glenn C. Sechen, Counsel for the Respondent

Glenn C. Sechen

Schain, Burney, Ross & Citron, Ltd.

222 North LaSalle Street

Suite 1910

Chicago, IL 60601-4514

312/ 332-0200

F:\GCS\Montalbano\Harvard Hills, McHenry Cnty\Filed Pleadings\NOF 12-31-08.doc

Electronic Filing - Received, Clerk's Office, January 6, 2009

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(Printed on Recycled Paper)

BEFORE THE ILLINOS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS, )

ex rel.

LISA MADIGAN, Attorney

)

General of the State of Illinois,

)

No. PCB 09-030

)

(Enforcement - Water)

Complainant,

)

)

v.

)

)

MONTALBANO BUILDERS, INC.,

)

an Illinois corporation,

)

)

Respondent.

)

APPEARANCE

Glenn C. Sechen, James R. Griffin and M. Hope Whitfield hereby enter their

appearance on behalf of the Respondent, Montalbano Builders, Inc.

/s/

Glenn C. Sechen

Attorney for the Respondent

/s/

James Griffin

Attorney for the Respondent

/s/ M. Hope Whitfield

Attorney for the Respondent

Certificate of Service

The undersigned hereby certifies that on the 6

th

day of January, 2009, a copy of the

above was served upon:

Clerk of the Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph Street

Suite 11-500

Chicago, Illinois 60601

Zemeheret Bereket-Ab

Assistant Attorney General

Environmental Bureau North

69 W. Washington Street, Suite 1800

Chicago, Illinois 60602

by placing the same in the U.S. Mail at 222 N. LaSalle, with proper postage affixed,

before the hour of 5:00 p.m.

By: /s/ Glenn C. Sechen

Attorney for the Respondent

F:\GCS\Montalbano\Harvard Hills, McHenry Cnty\Filed Pleadings\Appearance.doc

Electronic Filing - Received, Clerk's Office, January 6, 2009

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS, )

ex rel.

LISA MADIGAN, Attorney

)

General of the State of Illinois,

)

No. PCB 09-030

)

(Enforcement - Water)

Complainant,

)

)

v.

)

)

MONTALBANO BUILDERS, INC.,

)

an Illinois corporation,

)

)

Respondent.

)

ANSWER TO COMPLAINT

Respondent, MONTALBANO BUILDERS, through their attorneys, SCHAIN,

BURNEY, ROSS & CITRION, LTD., answers the complaint of the People of the State of

Illinois, as follows:

CAUSES THREATEN OR ALLOW WATER POLLUTION

1.

This Complaint is brought on behalf of the PEOPLE OF THE STATE OF

ILLINOIS

ex rel.

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).

ANSWER:

allegations of Paragraph 1.

2.

The Illinois EPA is an administrative agency of the State of Illinois, created

pursuant to Section 4 of the Act, 415 ILCS 5/4 (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).

which no answer is required. The citations speak for themselves.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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2

3.

At all times relevant to the Complaint, Respondent, Montalbano Builders,

Inc., ("Montalbano"), is an Illinois corporation in good standing.

ANSWER:

allegations of Paragraph 3.

4.

Montalbano is engaged in the development of a 393 lot residential

subdivision with single family homes known as the Huntington Ridge subdivision located

on the southwest corner of Harvard Hills and Crowley Roads in Harvard, McHenry

County, Illinois ("Site").

ANSWER:

allegations of Paragraph 4.

5.

On June 5, 2006, Montalbano submitted to the Illinois EPA a notice of

intent for coverage under the NPDES stormwater permit for the Site. The Site is 193

acres in size and the receiving stream for stormwater runoff from the Site is known as

Mokeler Creek. Adjacent to the Site there is a wetland flood plain which discharges in

Mokeler Creek.

ANSWER:

proof thereof.

6.

On July 6, 2006, the Illinois EPA granted Montalbano coverage under the

NPDES stormwater permit for stormwater associated with construction activity.

ANSWER:

allegations of Paragraph 6.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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3

7.

On April 17, 2007, the McHenry County Soil and Water Conservation

District ("MCSWCD") inspected the Site to determine the effectiveness of erosion and

sediment control measures in preventing water pollution. During the inspection

MCSWCD observed that unstabilized and inadequate erosion controls over portions of

the Site had allowed silt-laden runoff to threaten wetland area just offsite the

development.

answer and demands strict proof of the allegations therein.

8.

The MCSWCD also noted a portable diesel fuel tank located at the Site

which had no secondary spill containment and evidence of spilled fuel

was

found on the

ground near the tank.

ANSWER:

answer and demands strict proof of the allegations therein.

9.

On May 9, 2007, the Illinois EPA conducted a Stormwater Construction

Site Inspection to review the erosion control measures employed at the Site. The Illinois

EPA's inspection was prompted by reports received from the MCSWCD.

ANSWER:

answer and demands strict proof of the allegations therein.

10.

During the May 9, 2007, Illinois EPA inspection, the inspector observed

that disturbed areas where no construction activity had been occurring for over three

weeks did not have temporary stabilization in place.

ANSWER:

answer and demands strict proof of the allegations therein.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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4

11.

The inspector also observed evidence of sediments leaving the Site and

entering the adjacent wetland whose water eventually discharges into Mokeler Creek.

Some silt fences were installed in low-lying areas of the Site and were partially under

water accumulated in those areas.

answer and demands strict proof of the allegations therein.

12.

The inspector also observed that the final stormwater detention basin was

not stabilized and sediments were observed in the final manhole prior to the discharge

point.

ANSWER:

answer and demands strict proof of the allegations therein.

13.

The Illinois EPA inspector also observed that the diesel fuel storage tank

found by the MCSWCD during its April 17, 2007 inspection, was not properly protected

with dykes, curbing or some other form of containment for spills. No spill kits were noted

and storm sewer inlets were not designed to contain fuel spills.

ANSWER:

answer and demands strict proof of the allegations therein.

14.

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.

ANSWER:

which no answer is required. The cited section further speaks for itself.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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15.

Section 3.315 of the Act, 415 ILCS 5/3.315 (2006), provides as follows:

"Person" is any individual, partnership, co-partnership, firm,

company, limited liability company, corporation, association, joint

stock company, trust, estate, political subdivision state agency or any

other legal entity, or their legal representative, agent or assigns.

ANSWER:

which no answer is required. The cited section further speaks for itself.

16.

Montalbano, a corporation, is a "person" as that term is defined in Section

3.315 of the Act, 415 ILCS 5/3.315 (2006).

ANSWER:

which no answer is required. The cited section further speaks for itself.

17.

Section 3.165 of the Act, 415 ILCS 5/3.165 (2006), provides as follows:

"CONTAMINANT" is any solid, liquid, or gaseous matter, any odor,

or any form of energy, from whatever source.

ANSWER:

which no answer is required. The cited section further speaks for itself.

18.

Silt laden runoff which entered the adjacent wetland and eventually

discharged into Mokeler Creek is a "contaminant," as that term is defined by Section

3.165 of the Act.

ANSWER:

To the extent that this Paragraph 18 may be considered to

conclusions of law to which no answer is required.

19.

Section 3.545 of the Act, 415 ILCS 5/3.545 (2006), provides as follows:

"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 likely to create a nuisance or render such waters

harmful or detrimental or injurious to public health, safety, or welfare,

Electronic Filing - Received, Clerk's Office, January 6, 2009

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or

.

domestic, commercial, industrial, agricultural, recreational, or other

legitimate uses, or to livestock, wild animals, birds, fish, or other

aquatic life.

ANSWER:

which no answer is required. The cited section further speaks for itself.

20.

The silt-laden runoff from the Site that flowed into Mokeler Creek constitutes

"water pollution," as that term is defined by Section 3.545 of the Act, 415 ILCS 5/3.545

(2006).

ANSWER:

allegations of Paragraph 20.

21.

Section 3.550 of the Act, 415 ILCS 5/3.550 (2006), provides as follows:

• "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 the State.

which no answer is required. The cited section further speaks for itself.

22.

The adjacent wetland and Mokeler Creek into which the wetland discharges

to are "waters," as that term is defined in Section 3.550 of the Act.

which no answer is required.

23.

By allowing disturbed soils to remain unstabilized and without adequate

erosion control protection, Respondent caused, threatened or allowed the discharge of

a contaminant, silt-laden runoff, into the environment.

ANSWER:

allegations of Paragraph 23.

24.

By causing, threatening or allowing the discharge of silt-laden runoff from

the Site, "contaminants," to discharge into the adjacent wetland and eventually into

Mokeler Creek, a water of the State, Respondent caused, threatened or allowed water

pollution in Illinois, in violation of Section 12(a) of the Act, 415 ILCS 5/12(a)(2006).

Electronic Filing - Received, Clerk's Office, January 6, 2009

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allegations of Paragraph 24.

WHEREFORE, Montalbano Builders, Inc., prays that this Count be dismissed at

plaintiff’s cost.

CREATING A WATER POLLUTION HAZARD

1-13. Complainant realleges and incorporates by reference herein paragraphs 1

through 13 of Count I as paragraphs I through 13

,

of this Count 1I.

though fully set forth herein.

14.

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.

ANSWER:

which no answer is required. The cited section further speaks for itself.

15.

By allowing disturbed soils and soil stockpiles with inadequate erosion

controls to remain adjacent to wetland areas, thus creating a water pollution hazard,

Montalbano violated Section 12(d) of the Act, 415 ILCS 5/12(d) (2006).

ANSWER:

allegations of Paragraph 15.

WHEREFORE, Montalbano Builders, Inc., prays that this Count be dismissed at

Plaintiff’s cost.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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FAILURE TO COMPLY WITH THE TERMS AND

CONDITIONS OF THE NPDES PERMIT

1-13. Complainant realleges and incorporates by reference herein paragraphs 1

through 13 of Count I as paragraphs 1 through 13 of this Count III.

though fully set forth herein.

14.

Section 12(f) of the Act, 415 ILCS 5/12(f) (2006), provides 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, any 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 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.

ANSWER:

which no answer is required. The cited section further speaks for itself.

15.

Section 309.102(a) of the Illinois Pollution Control Board Water Pollution

regulations ("Board Water Pollution Regulations"), 35 Ili. Adm. Code 309.102(a),

provides as follows:

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.

which no answer is required. The cited section further speaks for itself.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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16.

Montalbano's General NPDES Permit for Stormwater Discharges from

Construction Site Activities No. ILR10, Part IV. D.2(a) provides in pertinent part as

follows:

"... 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."

ANSWER:

No answer to Paragraph 16 is necessary as the Permit speaks

dismiss Count III as the NPDES Permit is not attached.

17

The Illinois EPA inspector observed that a large part of the site remained

dormant for more than 21 days and had not been stabilized within 14 days as required

by NPDES Permit No. ILR10 Part IV.D.2(a).

ANSWER:

answer and demands strict proof of the allegations therein.

18.

The discharge of silt-laden runoff from the Site into the adjacent wetland

and eventually into Mokeler Creek is a violation of Respondent's general NPDES

stormwater permit and is therefore a violation of Section 309.102(a) of the Board Water

Pollution Regulations, 35 Ill. Adm. Code 309.102(a).

ANSWER:

To the extent that this Paragraph 18 may be considered to

conclusions of law to which no answer is required.

19.

By failing to maintain adequate stormwater pollution prevention measures

as called for by its coverage under the general NPDES stormwater permit at its

construction Site, Respondent also violated Section 12(f) of the Act, 415 ILCS 5/12(f)

(2006).

ANSWER:

allegations of Paragraph 19.

Electronic Filing - Received, Clerk's Office, January 6, 2009

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WHEREFORE, Montalbano Builders, Inc. prays that this Count be

dismissed at plaintiff’s cost.

Respectfully Submitted,

MONTALBANO BUILDERS, INC.

By: /s/Glenn C. Sechen

One of Its Attorneys

Glenn C. Sechen

Schain, Burney, Ross & Citron, Ltd.

222 No. LaSalle Street

Suite 1910

Chicago, IL 60601

(312) 332-0200

Attorney ID#91873

(printed on recycled paper)

F:\GCS\Montalbano\Harvard Hills, McHenry Cnty\Filed Pleadings\Answer to Complaint FNL.doc

Electronic Filing - Received, Clerk's Office, January 6, 2009