BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRE~~kFr~~
CLER~’S OFFiCE
PEOPLE
OF THE STATE OF ILLINOIS,
.~
Complainant,
STATE OF
ILUNOIS
v.
)
No.
PCB
96-98
POII~tj~~
Controj
6oard
SKOKIE
VALLEY
ASPHALT,
CO.,
INC.,
EDWIN
L.
FREDERICK,
JR.,
individually
and
as
owner and
President
of
Skokie
Valley Asphalt
Co.,
Inc.,
and
RICHARD
J.
FREDERICK,
individually
and
as
owner
and
Vice
President
of
Skokie Valley Asphalt Co.,
Inc.,
Respondents.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on January 15,
2004,
Complainant
filed
with
the
Illinois
Pollution
Control
Board,
a
Motion for
Leave
to File Instanter and The People of the State of Illinois’
Closing Argument and Post Trial
Brief,
a
true
and
correct
copy
of
which
is
attached
and
hereby
served
upon
you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State
of
Illinois
BY:
MITCHELL L.
COH N
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Floor
Chicago,
Illinois
60601
(312)
814-5282
SERVICE LIST
Mr. David O’Neill
Mr. Michael
B.
Jagwiel
Attorneys
at Law
5487 North Milwaukee
Chicago, Illinois 60630
Ms.
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600
5.
Second Street,
Suite 402
Springfield,
Illinois 62704
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
MOTION FOR LEAVE TO FILE INSTANTER
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MADIGAN, Attorney General of the State of Illinois, moves this
Board to accept the filing of The People of the State of
Illinois’
Closing Argument and Post Trial Brief this January 15,
2004.
In support
of this Motion,
counsel for Complainant,
Assistant Attorney General Mitchell Cohen,
states as follows:
1.
I calendared the due date of Complainant’s Closing
Argument for January 15,
2004,
(instead of January
l2th)
thinking
the due dates were January
15th
for Closing, March ~
for
Respondents’
Response,
and April
15th
for Complainant’s Reply.
2.
While preparing Complainant’s Closing for filing the
morning of January
15th,
~ checked the trial transcript to
confirm that the due date for a Reply was April 15~.When I did
CLERKS
OFFICE
i4~NI ~
2C04
PCB 96-98
No.
STATE OF ILUNO!S
PoIIutjo~
Control Board
v.
SKOKIE VALLEY ASPHALT,
CO.,
INC.,
an Illinois corporation,
EDWIN L.
FREDERICK,
JR.,
individually and as owner and
president of Skokie Valley Asphalt
Co.,
Inc.,
and
RICHARD
J. FREDERICK,
individually and as owner and
Vice President of
Skokie Valley Asphalt Co.,
Inc.,
Respondents.
1
so, on page 522 of the trial transcript,
I discovered the due
date for Complainant’s Closing Argument was January
12th
instead
of January
15th
3.
After learning my mistake,
I called Hearing Officer Carol
Sudman to explain the situation.
I also called Respondents’
attorney David O’Neill, but was unable to get through before
preparing this motion.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW J. DUI~, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
BY:
774~~2,
~
MITCHELL L. COH N
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago,
IL 60601
(312)
814-5282
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE
STATE OF ILLINOIS,
)
Complainant,
)
HKS
OFFj~~
J~Ni
v.
)
No. PCB 96-98
SKOKTE
VALLEY ASPHALT, CO., INC.,
)
°rnwj
Soar~
an Illinois corporation,
)
EDWINL.
FREDERICK, JR.,
)
individually and
as owner and
)
President of Skokie Valley Asphalt
)
Co., Inc.,
and
)
RICHARD
J.
FREDERICK,
)
individually and as owner and
)
Vice President of
)
Skokie Valley Asphalt Co.,
Inc.,
)
)
Respondents.
)
THE PEOPLE OF THE
STATE OF ILLINOIS’
CLOSING ARGUMENT AND POST TRIAL BRIEF
Now comes the Complainant,
PEOPLE OF THE STATE OF
ILLINOIS, ex rel LISA
MADIGAN, Attorney General ofthe State ofIllinois, and pursuant to Hearing Officer Sudman’s
October 31, 2003, Order presents their closing argument and post trial brief.1
The People ofthe State of Illinois (“People”) filed their Second Amended Complaint
against Skokie Valley Asphalt Company, Inc. (“SVA”), Edwin L. Frederick, Jr., and Richard
J.
Frederick on July 26, 2002. The Second Amended Complaint alleged five counts
against the
Respondents, most ofwhich relate to their National Pollutant Discharge Elimination System
‘The People’s
Closing Argument and Post Trial Brief relies on the record made during the
hearing October 30 and 31, 2003. The record includes the trial transcript and Exhibits admitted
into evidence. The People’s Closing Argument and Post Trial Brief does not attempt to address
any issues the People believe are preserved for appeal in the record. The People specifically
reserve the right to raise any issue preserved
in the record for Appeal.
1
(“NPDES”) permit: Count I.
Filing False Reports; Count II. Applying to Renew TheirNPDES
Permit Late; Count ifi. Failing to Comply with Sampling and Reporting Requirements; Count IV.
Causing
or Allowing Water Pollution;
and Count V. Violating Effluent Limits.
Evidence was
presented on all Counts against all Respondents.2
I. INTRODUCTION
SVA was an asphalt
paving contractor with its main office at768 South Lake Street,
Grayslake, Lake County, Illinois
(“site” or “facility”).3
SVA was an
Illinois corporation until the
business was sold and the corporation dissolved in 1998.~Edwin L. Frederick, Jr., also known as
Larry, was the President ofSVA from approximately 1978 until SVA was sold to Curran
Contracting in l998.~His brother, Richard I. Frederick, was the Vice President.6 Edwin Frederick
and Richard Frederick, the Frederick brothers, each owned 50 per cent of SVA, were the only
shareholders of SVA, and
were the only corporate officers ofSVA.7
SVA operated from the
Grayslake site since 1978.~
Before
1978, another asphalt manufacturing company called Liberty Asphalt operated the
2
Evidence was presented even though the Board disqualifiedAssistant Attorney General
Joel Sternstein from further appearing in this case on October 16, 2003. The People reserve this
issue for appeal.
~Tr. at
277, 278.
4Tr. at
299, 432
~Tr. at
276, 432, 433, 435.
6Tr. at 276.
~Tr. at 276, 435-437
8Tr. at
278.
2
site.9 Liberty Asphalt was owned and operated by Edwin and Richard Frederick’s parents; and
Edwin worked for Liberty Asphalt over 20 years.°
From 1978
until
1981 or ‘82, SVA and the Frederick brothers operated an actual asphalt
plant on site.”
Respondents sold the asphalt plant and had it removed in 1981 or
~82.12Since
selling and removing the asphalt plant, the site was used as an office, maintenance and storage
garage for equipment and trucks, and storage for asphalt liquid, asphalt primer coats, and
other
storage
tanks.’3
East ofSVA’s site in Grayslake is the Avon-Fremont Drainage Ditch, or the Avon
Drainage Ditch, that flows to the north through Grayslake (the town, not the waterbody) into
Third Lake.’4
Grays Lake, the body ofwater, is to the northeast ofSVA’s site.15 When SVA had
NPDES Permit No. IL 0065005, they were allowed to
discharge stormwater under certain
conditions
into Grays Lake through a storm sewer.6 The permit did not allow SVA to ever, under
any condition, discharge into the Avon-Fremont Drainage Ditch.’7
~Tr.
at
124,
129, 279,
334, 432. Note: At p. 279, the transcript reads “Libertyville”
instead ofLiberty.
‘°
Tr. at 279, 432-433.
“Tr.
at 279, 294,
296.
12
Tr.
at 279, 294, 296.
13
Tr.
at 134;
278, 438;
Comp. Exh.
32, 34, p.
1.
‘~
Tr.
at 145-146, 221, 223, 353; Comp. Exh.
25; Comp. Exh.
32.
‘~
Comp. Exh.
32.
‘6Tr. at 221;
Comp. Exh.
1.
‘7Tr.
at p.
145;
Comp. Exh.
1
3
From December 1994
through April 1995, therewas an oily discharge in theAvon-
Fremont Drainage Ditch startingjust east of
SVA’s facility.’8 Theland between SVA’s facility
andtheAvon-Fremont DrainageDitch is farm field.’9
During
that time period, therewere no
other industries or factories or gas stations in the area; the nearest business was a landscaping
servicecompany calledMitch’s Landscaping, or Mitch’s Green Thumb, to thewest of
SVA.2°A
farm
drainage tile ranthrough SVA’s propertytoward theAvon-FremontDrainage Ditch.2’ The
outfall from the farm drainage tile drains to theAvon-Fremont DrainageDitch due eastofthe
SVA property.22
When Respondents saw an oily sheen on the water in the farm drainage tile, they
plugged it.23
After Respondents plugged the drain tile on theirproperty, the oily discharge in the
Avon-Fremont Drainage Ditch subsided and stopped.24
Long before this 1994/1995
oily discharge in the Avon-Fremont Drainage Ditch,
to the filing ofthis lawsuit
in 1995. The Complaint was later amended to add Respondents Edwin
and
RichardFrederick and
more counts including waterpollution. As a result, the People ofthe
State of Illinois ask the Pollution ControlBoard for the following: finding that Respondents
repeatedly violated their NPDES
Permit by filing false
reports,
applying to renew theirNPDES
permit late, failing to submit required reports,
failing to maintain an accessible effluent sampling
point, discharging excessive amounts oftotal suspended solids, and causing or allowing water
pollution; ordering Respondents to cease and desist from such further violations ofthe Illinois
Environmental Protection Act (“Act”) and Board Regulations, assessing a civil penalty against
Respondents, assessing costs and fees in this action against Respondents, and granting such other
relief as the Board deems appropriate.
II. LEGAL
STANDARDS
A.
RESPONDENTS
AND THE WATERS OF ILLINOIS THEY POLLUTED
Both the Frederick brothers and SVA are persons as that term is defined in the Act.26
The
Frederick brothers are persons as individuals, andSVA is a person because it wasa corporation
during the time the violations occurred.
Section 3.315 ofthe Act, 415 ILCS
5/3.315
(2002),
defines person as:
any individual, partnership, co-partnership, firm,
company, limited
liability company, corporation,
association, joint-stock company,
trust, estate, political subdivision, state agency, oranyother legal
entity, or their legal representative,
agent, or assigns.
Each violation alleged against Respondents is
alleged against both SVA and the Frederick
26415
ILCS 5/3.315
(2002).
5
brothers.
In Illinois
environmental law, corporate officers can be personally liable fortheir
company’s environmental violations.27 The standard for corporate officer liability in
environmental enforcement actions is set forth in People v. C.J.R.
et
al.28
The C.J.R. case
involved a facilitywhich produced and
stored large amounts ofwaste. As in this case, the People
suedboth thecompanyand a corporate officer for the violations oftheAct and regulations.29 The
C.J.R. Court held that a corporate
officer constitutes
a “person” under Section 3.26 (now 3.315) of
the Act.3°A corporate officer can be held personally liable for his company’s environmental
violations if he was personally involved in
or
actively participated in a violation of the Act,
or
if
he had the ability or authority to control the acts or omissions that gave rise to
the violation.3’ The
cj~,
Court
went on to
say that the General Assembly intended for the Act to be liberally
construed.32
Any
other
“.
.
.
interpretation ofsection 3.26 (now 3.3 15) would not serve the Act’s
27
People v. C.J.R. Processing. Inc.,
et al.,
269 Ill.
App.
3d
1013, 647 N.E.2d 1035 (3d
Dist.
1995).
28
Id.
29
Id.
at 1014, 647N.E.2d at
1036.
30
Id.
~‘
Id. at 1018,
647 N.E.2d at
1038. The C.J.R. Court relied upon the Eighth Circuit’s
decision in United States v. Northeastern Phar. And Chem.
Co., Inc..
et al.,
810F.2d 726 (8th
Cir. 1986). In
Northeastern Pharmaceutical, the federal government sought to have a
corporation’spresident and
vice-president held personally liable for their company’s improper
hazardous waste disposal. Inholding these corporate officers personally liable, the Eighth Circuit
noted, that while the president ofthe corporation was not involved in the actual day-to-day
decisions to transport
and dispose ofthe hazardous waste, he
“was the individual in charge of
and directlyresponsible for all of his company’s
operations, including those at the subject
plant,
and he had the ultimate authority to
control the disposal ofhis
company’s
hazardous
substances.” 810 F.2d at 745
(underline added).
32
Id.
at 1037.
6
express purpose of imposing responsibility upon those who cause harm to the
environment.”33
Imposition ofliability on onlythe corporation andnotuponthose responsible individuals would
prevent enforcementofthe Act from achieving its objective.34
In this case, the evidence indicates thatbothEdwin andRichard Frederickwere personally
involved in, or activelyparticipated in at least some of the manyviolations ofthe Act.35 Also, they
both had the ability and authority to control the acts or omissions thatgave rise to the violations.36
Therefore, both the Frederick
brothers areproper Defendants, and all Respondents are liable under
Illinoisenvironmental law.37
Respondents’
stormwater from the lagoon on their property was allowed to discharge,
when their NPDES permit was effective, into Grays Lake via a storm sewer.38 Respondents
were
never allowed to discharge into Third Lake via a farm drainage tile and/or the Avon-Fremont
~ Id.
34Id. at
1038.
~
Richard Frederick, for example, signed and certified SVA’s DMRs and other letters to
the Illinois BPA: Complainant’s Exhibits 2,3,4, 5,9,10,
11,
12,
13,
14,
15,
16,
17, and 26.
Edwin Frederick, for example, signed and certified SVA’s late NPDES permit renewal
application and other letters to the Illinois EPA:
Complainant’s Exhibits 6, 7, 28, 29,
and 34i.
Together, in April,
1995, they finally consult with and retain the services ofan environmental
engineer and begin addressing SVA’s on-site contamination. Tr.
at 335, 347, 462-63.
36
See, for example, Richard Frederick’s testimony,
Tr. pp. 275
-
327; Edwin Frederick’s
testimony, Tr. pp.
432- 503;
Complainant’s Exhibits 2,3,4,
5,
6,
7, 9,10, 11, 12, 13, 14,
15,
16,
17,
and 26, 27, 28, and 34i.
~~415ILCS
5/3.315
(2002);
People v. C.J.R. Processing, Inc.,
et al., 269
Ill. App.
3d
1013, 647 N.E.2d 1035
(3d Dist.
1995).
38
Tr. at
136; Complainant’s Exhibit
1.
7
Drainage Ditch.39
Grays Lake, the Avon-Fremont Drainage Ditch, and
Third Lake are all waters
ofthe State ofillinois as thatterm is defined in Section 3.550 ofthe Act, 415 ILCS 5/3.550
(2002). “Waters”means:
all accumulations of water, surface and underground, natural,
and
artificial, public and private, or parts thereof,which arewholly or
partiallywithin, flow through, or border upon this State.
TheRespondents, SVA, Edwin Frederick, andRichard Frederick adverselyimpacted the
waters ofIllinoisby failing to comply with theirNPDES permit
and
causing or allowingwater
pollution.
B.
RESPONDENTS REPEATEDLY VIOLATE
THEIRNPDES PERMIT
1. RESPONDENTS FILE FALSE REPORTS WITH THE ILLINOIS EPA
Count I charges Respondents with failing to comply withtheirNPDES permit reporting
requirementsby filing false reports withthe Illinois EPA. Since the IllinoisEPA issued SVA an
NFDES
permit,
No.
IL0065005, Respondents are required to comply withthe rules, regulations
and conditions related to the permit.4°
This is explained in the Act. Section 12(f) ofthe Act, 415 ILCS 5/12(f)(2002), provides as
follows:
No person shall:
*
*
*
f.
Cause, threaten or allow the discharge ofanycontaminant
~ Tr. at 145; Complainant’s Exhibit 1.
40
Complainant’s Exhibit 1.
8
into the waters ofthe State, as defined herein, including but
not limited to, waters to anysewage works, or into any well
or from
any
point source within the State, without an
NPDES
permit forpoint source discharges issuedbythe
Agency under Section 38(b) of thisAct, or in violation of
any term or condition imposed by such permit, or in
violation ofanyNPDES permit filing requirement
established under Section
3
9(b), or in violation ofany
regulations adopted by the Board or ofany order adopted by
the Board with respect to the NPDES program.
The Illinois Pollution Control Board’s Water Pollution Regulations also explain
Respondents’ reporting requirements. Section 305.102(b) ofthe Board’s Water Pollution
Regulations,
35 Ill.
Adm. Code
305.102(b), provides as follows:
Reporting Requirements
b.
Every holder ofan NPDES Permit
is required to comply
with the monitoring, sampling, recording and reporting
requirements set forth in the permit and this chapter.
Respondents’ permit explicitly states
that they shall not falsify records submitted to
the
provides as follows:
The permittee shall not make any false statement, representation or
certification in any application,
record, report, plan or other
document submitted to the Agency or the U.S. EPA, or requiredto
be maintained under the permit.
On April 4,
1986, the Illinois
EPA issued to SVA NPDES Permit No. IL0065005 with an
effective date ofMay 4,
1986.41
This permit
allowed SVA to discharge storm water effluent into
certain receiving waters of the state listed
as Grays Lake via a storm sewer.42
NPDES Permit No.
~‘
Compl. Exh.
1.
42
Compl.
Exh.
1.
9
1L0065 005 required SVA,
inter cilia,
to
accurately comply with their reportingrequirements.
Respondentsmade false statements to theAgencywhen theysubmitted Discharge
Monitoring
IReports (“DMRs”)regarding either the taking of
water samples for testing,
the test results, or the
actual content ofits
effluent.43
By violating Standard Condition No.
19 ofits NPDES permit,
SVA also violated Section 305.102(b) ofthe Board’s regulations and Section 12(f)
of the Act.
2. RESPONDENTS FAIL
TO RENEW NPDES PERMIT
ON
TIME
Count II charges Respondents with failing to renew theirNPDES permit on time. Their
permit expired on March
1,
199~
In order to renew theirpermit on time and continue
discharging, Respondents were required to
apply for renewal at least 180 days before expiration.45
Discharging into waters ofthe state without an NPDES permit, or in violation of the
conditions of the permit is unlawful. Section 309.102(a) ofthe Board Water Pollution
Regulations,
35
Ill. Adm. Code
309.102(a), describes when discharges are unlawful and provides
as follows:
NPDES Permit Required
a.
Except as in compliance with the provisions ofthe Act,
Board regulations, and the CWA (33 U.S.C.
1251
et seq.),
and the provisions and conditions ofthe NPDES permit
issued to the discharger, the discharge ofany contaminant or
pollutant by any person intowaters ofthe State
from a point
source
or into a well shall be unlawful.
Section 309.104(a) ofthe Board Water Pollution Regulations,
35 Ill.
Adm. Code
‘13
Complainant’s Exhibits 2,
3,
4 and
5.
“~
Complainant’s Exhibit
1.
“~
35
Ill. Adm.
Code 309.104(a).
10
309.104(a), explains when a permittee, like SVA,
must apply for their NPDES renewal. It
provides as follows:
Renewal
a)
Any permittee who wishes to continue to discharge after the
expiration date ofhis
NPDES
Permit shall apply for
reissuance ofthepermit not lessthan 180 days prior to the
expiration dateof the permit.
Respondents did not apply for reissuance oftheir NPDES permit until after their permit
expired, not 180 days before it expired as required.46
Respondents were discharging effluent to
thewaters ofthe state without anNPDES
permit.47
Respondents thus violated Sections
309.102(a) and
309.104(a)
ofthe Board’s water pollution regulations and
Section 12(f) ofthe
Act.
3. RESPONDENTS FAIL TO
CORRECTLY SAMPLE THEIR EFFLUENT AND
OFTEN FAIL TO REPORT THE
CONTENT OF THEIR DISCHARGES
Count III also relates to Respondents’
NPDES
permit violations. There aretwo. First,
Respondents arecharged with failing to fileDMRs as requiredby their permit.And, second,
Respondents
are charged with failing to take water discharge samples at a point representative of
the discharge before it enters the
stream.
As already mentioned above when discussing filing false reports with the Illinois EPA,
Section 305.102(b) ofthe BoardWater PollutionRegulations, 35 Ill. Adm. Code 305.102(b),
explains that NPDES permit holders must comply with the reporting requirements detailed in their
permit. Respondents’
permit explains that they must file DMRs with the Illinois EPA by the
1 ~
46
Complainant’s Exhibit
6.
~
Complainant’s Exhibit 8E.
11
ofthe following month.48 Special Condition No. 4 ofSVA’s NPDBS Permit No. 1L0065005
provides:
The permittee shall record monitoring results on Discharge
Monitoring Report forms using
one such form for each discharge
each month.
The completed Discharge Monitoring Report form
shall be submitted monthly to EPA, no later than the
15th ofthe
following month, unless otherwise specified by the Agency.
Respondents failed to turn in DMRs formany months in the late
1980s and early 1990s.49
By repeatedly violating Special Condition
4 of theirNPDES permit, Respondents also violated
Sections 305.102(b) and 309.102(a) ofthe Board’s Water Pollution Regulations and
Section
12(f)
ofthe Act.5°
In addition to describing when DMRs are due to the Illinois EPA, SVA’s permit also
describes where sampling
should take place so the samples are representative ofthe effluent
discharge. Special Condition No.
1
ofSVA’s NPDES Permit No. 1L0065005 provides as follows:
Samples shall be taken in compliance with the effluent monitoring
requirements and shall be taken at a point representative~of
the
discharge, but prior to entry into the receiving stream.
Respondents did not maintain an accessible effluent sampling point for the discharge from
the SVA lagoon, and therefore, did not and could not take samples representative ofthe discharge.
By violating Special Condition
1
of theirNPDES permit,
Respondents also violated Sections
305.102(b) and 309.102(a) ofthe Board’s Water Pollution Regulations and Section 12(f) ofthe
Act.
48
Compi. Exh.
1.
‘1~
Complainant’s Exhibit 8.
50
See
also Count II above.
12
C.
RESPONDENTS ALSO
CAUSE OR ALLOW WATER POLLUTION
1. RESPONDENTS POLLUTE AVON-FREMONT DRAINAGE DITCH.
Besides repeatedly violating technical requirements oftheir NPDES permit, Respondents
are also charged in Count IV with causing, or allowing water pollution.5’ In late 1994 and early
1995 Respondents caused or allowed the discharge of oily material with a diesel fuel odor and
visible
surface sheen from their site into the farm drainage tile which discharges to the Avon-
Fremont Drainage Ditch.52
The oily discharge from SVA’s property through the farm drainage
tile resulted in a diesel fuel odor and a visible surface oil sheen on the Avon-Fremont Drainage
Ditch.53
Section 12(a) ofthe Act, 415 ILCS 5/12(a) (2002), prohibits
Respondents from
discharging oil into waters of the state. It provides as follows:
No person shall:
a)
Cause or
threaten or allow the discharge ofany
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;
Oil
is a contaminant.
Section 3.165 of the Act, 415 ILCS
5/3.165
(2002), provides the
following definition:
~‘
Complainant’s Exhibit 34, pp.
14
-
16.
52
Complainant’s Exhibit 34, pp.
14
-
16; Resp. Exh.
6.
~ Complainant’s Exhibit 34, pp.
14
-
16.
13
“CONTAMINANT” is any solid, liquid,
or gaseous matter, any
odor, or any form
of energy, fromwhatever source.
Oil, a contaminant, in Illinoiswaters is
water
pollution.
Section
3.545
ofthe Act,
415
IILCS
5/3.545
(2002), provides the following definition:
“WATER POLLUTION” is such alteration ofthe physical, thermal,
chemical, biological,
or radioactive properties of any waters ofthe
State, or such discharge ofany contaminants into any waters ofthe
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, orto
livestock, wild animals,
birds, fish, or other aquatic life.
The oily discharge, sheen,
and diesel odor are contaminants.
Together, the oil,
sheen, and
odor altered the physical and chemical properties ofthe waters in the Avon-Fremont Drainage
Ditch. The discharge also rendered such waters harmful and injurious.54 The oily discharge from
SVA’s property through the farm drainage tile to the Avon-Fremont Drainage Ditch constitutes
water pollution.
The oily discharge, sheen, and odor can also be considered “offensive conditions” and
“offensive discharges.” Section 302.203 ofthe 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 ofother than natural origin.
.
Section 304.106 of the Board Water Pollution Regulations,
35 Ill. Adm.
Code 304.106,
provides, in pertinent part, as follows:
54Tr.
at 421.
14
Section 304.106
Offensive Discharges
In addition to the other requirements ofthis Part, no effluent shall
contain settleable solids, floating debris, visible oil, grease, scum or
sludge solids.
Color, odor and turbidity must be reduced to below
obvious levels.
By causing or allowing the oily discharge from their site into the farm drainage tile and
into the Avon-Fremont Drainage Ditch, Respondents have caused or allowed water pollution in
violation of Section 12(a) ofthe Act and have also violated Sections 302.203
and 304.106
ofthe
Board Water Pollution Regulations.
Respondents water pollution violation was even quantified once.
Section 304.124(c) of the
Board Water Pollution Regulations,
35
Ill. Adm.
Code
3 04.124(c), provides, in pertinent part, as
follows:
c.
Oil
may be analytically separated into polar and nonpolar
components.
Ifsuch separation is done, neither ofthe
components may exceed
15
mg/i
(i.e.
15
mg/i
polar
materials and
15 mg/i nonpolar materials).
Section 304.105 ofthe Board Water Pollution Regulations,
35
Ill. Adm. Code 304.105,
provides, in pertinent part, as follows:
Violation ofWater Quality Standards
In addition to
the other requirements ofthis Part, no effluent shall,
alone or in combination with other sources, cause a violation of any
applicable water quality standard.
.
.
In March
1995,
during the Avon-Fremont Drainage Ditch oil discharge investigation, the
Illinois EPA took a water sample at the ditch ofthe effluent from the farm drainage tile that ran
through Respondents’
site and had it tested for oil and
grease content.55 This
sample, after
~ Tr. at 152.
15
laboratory analysis, far exceeded the standard allowable concentration of 15 milligrams ofoil per
liter.56
Respondents therefore
also violated Section 304.105 ofthe Board’s Water Quality
Standards.
2.
RESPONDENTS ALSO DISCHARGE TOO MUCH SEDIMENT FROM THEIR SITE.
Count V is technically another NPDES permit violation. Respondents repeatedly violate
their NPDES permit by exceeding their effluent limits. They discharged excessive amounts of
sediment,
total suspended solids (“TSS”), from their site~
The Board’s water pollution regulations explain that no one can discharge more
contaminants than is
allowed for in their NIPDES permit.
Section 304.14 1(a) ofthe Board Water
Pollution Regulations,
35
Ill. Adm.
Code 304.141(a), provides, in pertinent part, as follows:
NPDES Effluent Standards
a.
No person to whom an NPDES Permit has been issued may
discharge any contaminant in his effluent in excess ofthe
standards and limitations for that contaminant which are set
forth in his permit.
Respondents’ NPDBS Permit No. 1L0065005 contains the following effluent limits for
total suspended solids
(“TS S”):
TSS Concentration Limits (mg/l)
30 day Average
DailyMaximum
15.0
30.0
During the early and mid
1990s Respondents
exceededthe
TSS concentration limits
56
Tr.
at 155
-
56;
Compl. Exh. 21.
16
allowed in theirNPDES
permit many times.57 In doing so, they violated their NPDES permit and
discharged too much sediment into waters ofthe
state.58
As a result, Respondents violated
Section 12(f) ofthe Act (see Count IV above)
and Sections 304.141(a) and 309.102(a) (see Count
II above) ofthe Board’s Water Pollution Regulations.
D.
THE PEOPLE’S BURDEN OF PROOF IS ONLY
PREPONDERANCE OF EVIDENCE
Complainant, the People ofthe State of Illinois, brought this environmental enforcement
action against the Respondents.
Therefore, Complainant has the burden ofproof.59
The familiar
term used
to describe Complainant’s burden of
proofis “preponderance ofthe evidence”.
Tn other
words,
is it more likely than not that Respondents committed violations ofthe
Act
,
the Board’s
water pollution regulations, and their NPDES permit conditions? Is itmore likely than not that
Respondents caused or allowed waterpollution, failed to timely renew their NPDES permit, failed
to
comply with sampling and reporting requirements called for in theirNPDES permit,
violated
effluent limits
in their NPDES permit, and failed to comply with reporting requirements by filing
false DMRs?
More recently, courts have preferred to simply define “burden ofproof” rather than
“preponderance ofevidence”.
The definition of“burden ofproof” is whether the allegation is
more probablytrue than not true.6° Thus, Complainant’s burden is to
establish that it is more true
~ Compl.
Exh.s
9,
10, 11, 12, 13, 14, 15, 16
and
17.
58Compl. Exh.
1.
~ 415 ILCS
5/31(e)(2002).
60
Illinois
Pattern Jury Instruction, Section 21.01
17
than not true that Respondents committedthe violations oftheAct, theBoard’s regulations, and
the conditions of their permit.
The People exceed this burdenon all
counts against all Respondents.
III. FACTS
A.
RESPONDENTS ARE REQUIRED TO
HAVE NPDES
PERMIT
Chris Kallis, an Illinois EPA field inspector explained why SVA was required to have an
NPDES permit for their Grayslake site. He works for the Illinois EPA Bureau ofWater and has
been employed with the Illinois EPA for approximately 22 years.6’
He has held the title of
Environmental Protection Specialist for approximately 20 years.62
His duties are to conduct
inspections and investigations to ensure compliance with the Illinois Environmental Protection
Drainage Ditch.
66
SVA was required to have an NPDES permit because the Illinois EPA Field Operations
Section determinedthat SVA had storm water runoffassociated with industrial activity that could
be a threat to
water quality.67
Those potential sources ofpollution were storm water runoff from
gravel, sand, stone, recycled bituminous concrete, pavement, asphalt, cement based tanks, and
gasoline, fuel oil, and other storage tanks.
68
On April 4,
1986, Illinois EPA issued a site specific NPDES permit for the storm water
runofffrom the SVA facility.69
The intent or purpose of a
NPDES
site specific permit is to
ensure
that water quality standards are met by requiring the permittee,
SVA,
to monitor the stormwater
discharge on a regularbasis.7°
B.
RESPONDENTS VIOLATE PERMIT REQUIREMENTS RIGHT FROM THE START
Mike Garretson laid the foundation and presented evidence related to
each violation of
Respondents’ NPDES permit except that Respondents
failed to maintain an accessible sampling
point.
Mike Garretson has worked for the Illinois EPA in Springfield for twenty-four (24)
66
Tr.
at pp.
119-120;
Compi. Exh.s
18,
19, 22,
and 24.
67
Tr.
at p.
131;
Compl. Exh.s
19, 22, and 24.
68Tr.atp.
134.
69
Tr.
at p.
137;
Compl. Exh.
1.
70Tr. atp. 137
19
years.7’ He is the acting manager ofthe Compliance Assurance Section, Water Pollution Control
Division.72 When he started with the Agency, he worked in the Operator Certification Unit ofthe
Water Pollution Control Division and in 1987 became the Manager ofthe Compliance Operations
Unit within the same division.73 The Compliance Operations Unit is responsible formonitoring
compliance ofstorm water, water, and waste water treatment facilities with NPDES permits
issued by the Agency, processing Discharge Monitoring Reports (“DMRs”) received by the
Agency, and taking compliance or enforcement action as necessary.74 The Unit compares the
discharge data in DMRs
submitted by facilities with discharge limits
contained in the NPDES
permit issued to the facility.75
With this experience as background, Mike Garretson was familiar with SVA because they
had a NPDES
permit.76 His Unit at the Illinois EPA reviewed and coded SVA’s permit
requirements into their computer system in order to
track compliance.77 The Illinois EPA issued
SVA theirNPDES permit, IL-0065005, for their Grayslake facility April 4,
1986.78 The permit
71
Tr.
at 23.
72Tr.
at 23, 24.
~ Tr.
at 23, 24.
74Tr. at 24.
~ Tr.
at 25.
76Tr. at25.
77Tr. at 32.
78
Tr.
at 27, 28; Comp.
Bxh.
1.
20
became effective on May 4,
1986,
and expired on March
1, 199i.~~
It allowed SVA to discharge
stormwater into Grays Lake through a storm sewer.80 The permit required SVA to submit monthly
DMRs.8’
According to theirpermit, SVA was supposed to
start submitting their DMRs to the
Illinois EPA June 15,
1986
-
the 15t~~
day ofthe month after the permit became effective.82 SVA
had to submit DMRs even if they were not discharging once the permit was issued.83
Mr. Garretson explained that in the late
1980s and
early 1990s, the Illinois EPA Division
of Water Pollution Control,
Compliance Assurance Section received DMRs in the mail.84 The
DMRs were typically date-stamped and logged into DMR Submission Records before being
copied and distributed to the regional offices and records unit.85 The DMR Submission Record is
a logbook that lists NPDES permit holders, their permit numbers,
and the dates DMRs are
received at the Illinois
EPA.86 This was the same procedure the Illinois EPA used for DMRs
received from SVA.87
~
Tr.
at 27;
Comp. Exh.
1.
80
Comp.
Exh.
1.
81
Tr.
at 28, 29;
Comp. Exh.
1
-
see page 3, Special Condition 4.
82
Tr.
at 32, 33; Comp. Exh.
1.
83
Tr.
at 33; Comp. Exh.
1.
84
Tr.
at 33.
85
Tr.
at 33, 34; Compl. Exh.
8.
86
Tr.
at 47,
48;
Compi. Bxh.
8.
~ Tr.
at 34; Compl. Exh.
8.
21
Even though SVA’s NPDES permit became effective in May of 1986, there is no
evidence
that SVA submitted any DMRs
that year.88 Likewise, SVA did not submit any DMRs as required
by their NPDES permit in
1987.89 The DMR Submission Record indicates that SVA submitted
only two DMRs, rather thanthe twelve requiredby theirpermit, for year 1988: November and
December.9°Respondents admit they did not submit any earlier DMRs in
a letter written to the
Illinois EPA signed by Richard Frederick.9’ In the sameNovember
1988 letter, Respondents state
they will now submit DMR reports as required.92
Nevertheless in 1989, SVA failed to submit DMRs for the months ofApril, June, August,
September, October, November, and December.93 Again, in a January 1990
letter Respondents
admit that they failed to
submit DMRs
as required by their NPDES
permit.94 Respondents,
in that
same January 1990 letter also assure the Illinois EPA that DMR omissions will not occur again.95
Yet, in that same year, SVA failed to submit a DMR for the month ofSeptember.96 And again in
88
Tr.
at 49 and Comp. Exh.s
1
and 26.
89
Tr.
at 50; Comp. Exhs.
1
and
8A.
~°
Tr.
at
51,
52;
Comp. Exhs.
1
,8B, and 26.
~‘
Tr.
at 289
-
91; Comp. Exh. 26.
92
Comp. Exh. 26.
~°
Tr.
at 52;
Comp. Exh.
8C.
~ Tr.
at 291
-
92; Comp.
Exh. 27.
~ Comp. Exh. 27.
96
Tr.
at 52; Comp. Exh.
8D.
Note: the question in the transcript indicates
1999;
however,
the answer by the witness, and the exhibit refers to
1990.
1999 appears to be
a typographical
error, or a mistatement by Assistant Attorney General Cohen.
22
1992,SVA failed to submit theirDMR for the month ofJuly.97
IfSVA submitted theirDMRs, they were sometimes
late, or false.98 For example, SVA did
not submit their December
1990 DIVIR,
whichwas due January 1991, until April 25, 1991.~~
Like
most ofSVA’s DMRs, it was signed and
certifiedbyRichard J. Frederick.’°°
Other thanthe
date
SVA put on the December 1990 DMR, the data is identical to the data SVA submitted on its
November 1990 DMR.’°’The November and December DMRs also look identical.’°2
SVA’s January 1991 DMR, signed and certified by Richard Frederick, was due February
15,
1991.103The IllinoisEPA did not get it until April 25, 1991.104The IllinoisEPA received
SVA’s February 1991
DMR before receiving SVA’s January DMR: February 28th.’°5Other than
the dates Respondents wrote in,
the data in the January and February 1991
DMRs are identical.’°6
~ Tr.
at 53; Comp. Exh.
8F.
98
Tr. at 37-41; Comp. Exhs.
1,2, 3,4,
5 and
8.
~
Tr. at 37; Comp. Exhs.
1,
3
and 8D.
‘°°
Tr.
at 37;
Comp. Exh.
3.
‘°‘
Tr.
at 37, 38;
Comp. Exhs.
2 and
3.
Note: the line ofquestioning related to
Complainant’s Exh.
2
is missing from the transcript. It should appear approximately at the end of
page 36 before the questions related to
Complainant’s Exh.
3.
Comp. Exh.
2 was admitted into
evidence and questions
linking Comp.
Exhs.
2 and
3
are in the transcript.
102
Tr.
at 38, 39;
Comp. Exhs.
2 and
3.
~03
Tr.
at 39;
Comp. Exh. 4.
104
Tr.
at 39;
Comp. Exh.
4
and 8E.
105
Tr. at 39; Comp. Exh. 4, 5 and 8E.
106
Tr. at 40; Comp. Exh. 4 and 5.
23
Other than the dates, the copies of the January and February 1991 DMRs appear identical.’°7
Mr. Garretson explained, there are many variables
that can effect storm water
discharges.’°8Weather, sampling procedures, and testing procedures
are the types ofvariables
that
can result in different values reported on discharge monitoring report forms.’°9Therefore, it is
very unusual for the Illinois EPA to
get DMRs
from the same companywith identical scientific
data two months in a row.”°
Some DMRs submitted by SVA indicated violations with their NPDIES permit discharge
limits.’1’
SVA’s NPDES petmit lists storm water discharge concentration limits for total
suspended solids (“TSS”).”2 The TSS concentration limits are
15 milligrams per liter (“mg/l”) as
a 30 day average
and 30 mg/l as a daily maximum.”3
The August 1991
DMR signed and
certifiedby Richard Frederick and submitted to the
Illinois EPA for SVA indicated a 30 day average concentration for TSS to be 55
mg/i.’14 The same
DMR indicated a daily maximum concentration for TSS to be 55 mg/l.”5
‘°7Tr.at 40;
Comp. Exh. 4 and
5.
‘°8Tr.at 41.
‘°9Tr.at 41.
110Tr. at 40, 41.
‘~‘
Tr.
at 53
-58; Comp. Exhs.
1,
9,
10,
11,
12,
13,
14,
15,
16
and
17.
112
Tr.
at 53; Comp. Exh.
1.
“~
Tr.
at 53; Comp. Exh.
1.
1~4
Tr at
54; Comp. Exh.
9.
115
Tr.
at 54; Comp. Exh.
9.
24
The September
1991
DMR form submitted by SVA indicated their storm water discharge
had a 30 day average concentration for TS S of25 mg/i.”6
SVA’s October
1991
DMR form reported a 30 day average for TSS of4l
mg/l.”7 The
daily maximum concentration for the same reporting period ofTSS in SVA’s storm water
discharge was also 41
mg/i.”8
In February 1992, the 30 day average concentration of TSS discharged from SVA’s site
was
18
mg/l.”9
SVA reported their 30 day
average TSS concentration in November 1992 was 22 mg/i.’20
For December
1992, SVA reported on theirDMR that their 30 day average TSS
concentration in the storm water discharge was 24 mg/i.’2’
The DMR form SVA submitted for May 1993
indicated a TSS 30 day average
concentration of24
mg/l.122
The DMR SVA submitted for June 1993 indicated a TSS storm water concentration level
for the 30 day average of 35
mg/i.’23 In the same DMR SVA reported their daily maximum
116
Tr.
at 54, 55; Comp.
Exh. 10.
“7Tr. at 55;
Comp. Exh.
11.
118
Tr.
at 55;
Comp. Exh.
11.
“~
Tr.
at 55,
56;
Comp.
Exh.
12.
‘20Tr.
at 56;
Comp. Exh.
13.
12~
Tr.
at
56;
Comp. Exh.
14.
122
Tr.
at
56,
57; Comp.
Exh. 15.
123
Tr.
at 57;
Comp. Exh.
16.
25
concentration for TSS was also 35
mg/i.’24
SVA also submitted aDMR for
April
1995.125
SVAreported
their storm water discharge
contained a 30 day average concentration for TSS of 126
mg/i.’26 SVA also reported their daily
maximum concentration for TSS in April, 1995, was 126 mg/l.’27
The 30 day average concentration for storm water discharges SVA reported in the DMR
form submitted to the Illinios EPA forAugust, September,
and October,
1991; February,
November, and December,
1992; May and
June, 1993;
and April,
1995 were in
excess of the
concentration limits
allowed in their NPDES
permit.128 The daily maximum discharge
concentration SVA reported for August and October 1991, June 1993,
and April 1995
also were
in excess ofthe concentration limits
allowed in theirNPDES
permit.’29
The NPDES permit the Illinois EPA issued to
SVA set the effluent limitations.’30 The
permit expired on March
1,
1991.131
To renew the NPDES permit, SVA had to reappiy with the
Illinois EPA
180 days before March
1,
1991
-
180 days before the permit expired.’32 SVA did not
124
Tr. at
57; Comp.
Exh.
16.
125
Tr.
at 57; Comp.
Exh.
17.
‘26Tr
at 57,
58;
Comp. Exh.
17.
127
Tr.
at
57,
58;
Comp. Exh.
17.
128
Tr.
at 53
-58; Comp. Exhs.
1,9,
10,
11,
12,
13,
14,
15,
16 and
17.
129
Tr.
at 53-58; Comp. Exhs.
1,9,11,
16 and
17.
130
Comp. Exh.
1.
‘~‘
Tr. at27 and
41; Comp.
Exh.
1.
132
Tr.
at 41, 42;
Comp. Exh.
1. The renewal application was due approximately
September,
1990.
26
reapply for their NPDES permit
180 days before March
1,
1991.133
SVA did not apply to renew at
ally time while the permit was in force.’34 The Illinois EPA did not receive SVA’s permit renewal
application until months afterthe permit had already expired.’35
The Illinois EPA received SVA’s permit renewal application June
5,
1991
136
It was
submitted,
signed and certified on June 3,
1991 by Edwin L. Frederick, Jr., President ofSVA.’37
Since the NPDES permit expired in March of 1991, the Illinois EPA’s Compliance Assurance
Section sent a Compliance Inquiry Letter to SVA in April.’38 The letter requested SVA submit the
permit renewal application directlyto the Compliance Assurance Section ratherthan the Permit
Section.’39 On May 7,
1991, Edwin Frederick admitted in a letter to the Illinois EPA that SVA was
required to
have an NPDES
permit.’4°
Respondents repeatedlyviolated requirements spelled out in theirNPDES
permit.
In
addition, Respondents,
who admitted that they were legally obligated to renew their NPDES
permit, failed to do so in a timely manner and continued to discharge into waters of the state.
‘~‘
Tr. at 42; Comp.
Exh.
6.
~
Comp. Exhs.
1
and 6.
~
Comp. Exhs.
1
and 6.
136
Tr. at 42;
Comp.
Exh.
6.
Note: SVA’s permit renewal application was inCompete. The
Illinois EPA had to request additional information from SVA. The Illinois EPA received the
additional information from SVA on January 7,
1992.
See Comp. Exh.
7.
‘~
Tr. at 42;
Comp.
Exh.
6.
‘38Tr.
at 42
-
46; Comp. Exh.
6.
~
Tr. at 42
-
46; Comp. Exh.
6.
140
Tr. at pp.
456-59;
Comp. Exh. 29
27
C.
ARE RESPONDENTS SAMPLES REPRESENTATIVE OF DISCHARGE?
Respondents’ NPDES permit also required that
samples be taken from a point
representative of the effluent discharge.’4’ To comply with this requirement Respondents must
maintain an accessible effluent sampling point.’42
Mr. Kallis noted in an August
9,
1991
Illinois EPA memo that SVA was
out of
compliance with its
1986 NPDES permit because SVA had no representative sampling point in
o~der
to
grab stormwater for testing.
~
A representative sampling point is needed in order for an
NPDES permittee to grab
samples to
ensure compliance with the NPDES permit.
It is also
necessary for the Illinois EPA to
grab samples for confirmation that the permittee is meeting the
NPDES permit limits.
‘~“
Attached to
the August 9,
1991
memo is a June 4,
1991
memo.’45
The June 4,
1991
memo
describes Mr. Kallis’ May 21,
1991
inspection of SVA in which Mr. Kallis was at SVA trying to
to
determine whether SVA had yet installed a representative discharge sampling point.
146
During
that inspection, Mr. Kallis had
a conversation with the Frederick brothers.
Mr. Kallis explained
his purpose for the inspection, but the Fredericks’ tempers flared and theybegan yelling
‘~‘
Compl. Exh.
1,
Special Condition
1.
142
Compl. Exh.s
1,
19, and 20.
143
Tr. at pp.
137-138, 145;
Comp. Exh.
19 atp.
1.
‘44Tr.atp.
138
“s Tr. atp.
138; Comp. Exh.
19, June 4,
1991
memo.
146
Tr. at pp.
139-140; Comp.
Exh.
19, June 4,
1991 memo.
28
obscenities at Mr. Kallis.’47
Mr. Kallis left SVA in order to avoid a confrontation.’48 Mr. Kallis
never saw an effluent
sampling point on May21, 1991.
~
While SVA operated under the
1986 NPDES
permit, SVA did not have an
accessible
representative sampling point from which to
grab samples.’5°This
is true for the time period SVA
had a NPDES permit, May4,
1986, through at least May 21, 1991.’~’
D.
RESPONDENTS ALSO CAUSE OR ALLOW WATER POLLUTION
In addition to the repeated violations oftheir
NPDES permit, Respondents
also cause or
allow water pollution from their Grayslake site.152
1.
OFFICE
OF EMERGENCY RESPONSE CALLED
TO THE SCENE
From December 1994 through April
1995,
the Illinois EPA’s Office ofEmergency
Response and other agencies investigated oil releases in the Avon-FremontDrainage Ditchjust
east ofthe
SVA site.’53
Donald Kiopke has worked for Illinois
EPA since March of 1980;
since 1984 he has
147
Tr. at pp. 139-40; Compl. Exh. 19, June 4, 1991 memo.
Mr. Kallis further expresses
his concern about the hostility he experienced from the Frederick Brothers in his August
9, 1991,
memo to
Margaret Howard (Compl. Exh.
19) where he specially requests that any section 31
meeting be held in Springfield, or at the Attorney General’s Office.
148
Compl. Exh. 19,June
4,
1991
memo.
149
Tr.
at p.
142
‘50Tr. atp. 145
‘~‘
Compl. Exh.s
1 and 19.
152
Compi. Exh. 34 and Resp. Exh.
6.
153
Tr. at 233; Compi. Exh.s 22, 23, 24, 25, 34, p. 14.; Resp. Exh.
6.
29
worked for the illinois EPA’s
Office ofEmergency Response’s EmergencyResponse Unit.154
The mission of the Emergency Response Unit is to protect the public health,
safety, and the
environment with respect to
emergencies dealing with chemicals and petroleum.’55 For example,
the Emergency Response Unit will respondto
oil or petroleum discharges into bodies ofwater.156
Mr. Kiopke has responded to hundreds of emergency situations; approximatley fifty percent of the
emergencies he responded to dealt with oil orpetroleum releases.’57
Mr. Klopke often
investigates oil spills with investigators
fromthe U.S. EPA.’58
Mr. Klopke is
familiar with SVA,
the~Avon
Drainage Ditch, and the area around SVA
because he inspected those areas on April
19, l995.’~~
Ken Savage, also from the Illinois EPA’s
Office ofEmergencyResponse, and Betty Lavis, the on-scene coordinator for the U.S. EPA, were
with him that day.’6°When he got to the site, he immediately saw the oil sheen on the surface of
the Avon-Fremont Drainage Ditch and noticed
a strong petroleum odor.’6’
Ms.Lavis noted free
product bubbling up in the farm field drainage tile directly east ofSVA between SVA’s property
154
Tr. at p. 213-215; the EmergencyResponse Unit was formerly known as the Office of
Chemical Safety.
~
Tr.
at 214.
‘56Tr. atp.
214
‘57Tr. atp. 215
158
Tr. at 2 19-220.
‘59Tr. atp. 218-219, 221-222.
‘60Tr
at p.
223, 227-228; Comp.
Bxh. 25 at p.
1.
161
Tr. atp.
222
30
and theAvon-Fremont Drainage Ditch.’62 Mr. Klopke also crossed a bridge overtheAvon-
Fremont Drainage Ditch downstream from where the farm
drainage tile feeds into the Ditch.’63
From the bridge, he could see and smell
diesel fuel.’64
Based on his training and
experience, the
sheen and odor indicated to Mr. Klopke an
oil or petroleum release.’65
Mr. Kiopke recalled seeing above ground storage tanks
on the SVA site during his
inspection.
Given his experience, Mr. Klopke knew that a large facility such as SVA probably
had leaking underground storage tanks that might have been a contributing factor to the oil in the
Avon-Fremont Drainage Ditch.’66
However, on April
18, the Frederick brothers denied that there
were any underground storage tanks at SVA.’67
Mr. Kiopke also visited the nearby landscaping business, Mitch’s Green Thumb, that day
and saw no
oil there.’68
In fact, Klopke could not identify any other responsible businesses or
facilities for the oil in the Avon-Fremont Drainage Ditch other than SVA.’69
162
Comp. Exh. 25
at p.
1. Resp. Exh. 6 includes a Pollution Report from Betty Lavis sent
to
Respondents Environmental Consultant James Huffdated June
13, 2000. The PolRep notes
that “in
April
1995,
a petroleum release occurred from the SVA site into the Avon-Fremont
Drainage ditch.
U.S. EPA OSC
Betty Lavis coordinated a cleanup ofthe Avon-Fremont Drainage
ditch and traced the release back to
a leaking underground heating oil tank on the SVA site.”
163
Tr.
at 223
-
24.
‘64Tr.
at pp. 223-24
165
Tr.
at p. 222
‘66Tr. atp. 226
167
Comp.
Exh. 25 at p.
1.
‘68Tr. atp. 224
169
Tr.
at pp. 224-226
31
Betty Lavis ofthe U.S. EPA prepared a Pollution Report or “PolRep” on May 3,
1995
describingher visit to SVA on April
18,
1995 with Mr. Kiope and Ken Savage and April 25th.17°
The PoiRep indicates that the U.S.
EPAwas successful in determining that the source of the
petroleum release into the Avon-Fremont Drainage Ditch was SVA.’7’
On April
1
8th,
Richard and
Lany Frederick told her therewere no underground, or above ground storage tanks in use on their
property.172 In the PoiRep, Ms. Lavis wrote that on April 25,
1995,
she had planned to do
additional sampling at SVA, but she was met at the site by the Frederick brothers who said that
they found a leak and would
address the problem.’73
Ms. Lavis reiterates her findings and SVA’s
responsibility forthe
1995
oil release in the Avon-Fremont Drainage Ditch in a 2000 PolRep.’74
The leak that the Fredericks discovered seemed to be from
a 2,000 gallon underground
storage tank at the SVA property.’75
Ms.
Lavis also noted the possibility that “due to past
practices” at SVA there may have been a pooi of oil under SVA contributing to the continuing
release ofoil from SVA into the farm tile leading to the Avon Drainage Ditch.’76 The
1995
PoiRep mentions the 2000 gallon
storage tank
-
but it also mentions the possibility that there may
‘~°
Tr. atp. 227;Comp. Exh 25. Note that in Exhibit 25, U.S.EPA abbreviates Skokie
Valley Asphalt as “SVAC”.
‘~‘
Tr. atp. 228; Comp. Exh. 25.
172
Compl. Exh. 25.
~
Tr.
at pp. 228-231; Comp.
Exh. 25
atp. 2.
‘74Resp. Exh.
6.
‘~
Compl. Exh.
34.
176
Tr.
at p. 232;
Comp. Exh.
25
at p.
3.
32
iDe additional product under the property that might be contributing to the release.’77
2.
FIELD INSPECTOR ASSISTS WATER POLLUTION INVESTIGATION
Chris
Kallis,
the Illiniois EPA Field Inspector familiar with SVA,
also assisted in the oil
release
and water pollution investigation
at the Avon Drainage Ditch in 1995.
In response to the ongoing investigation as to contaminants thatSVAwas discharging into
the Avon-Fremont Drainage Ditch, on March
1,
1995, Mr. Kailis took samples from the point
where the farm drainage tile discharged into the Ditch.’78
While Mr. Kailis collected that sample,
he
observed a concentrated heavy oil sheen coming from the farm drainage tile and
downstream in
the Avon-Fremont Drainage Ditch.’79
During the time he collected the samples, he noted a
petroleum-based odor near the collection point coming from the farm drainage tile.’80
Mr. Kallis
did not see any sign of oil, grease or any contaminant in the Avon-Fremont Drainage Ditch
upstream from the drainage tile.’8’
Mr. Kallis used standard procedures for collecting the samples, and those samples were
analyzed at the laboratory for organics and pesticides.’82
The results ofthe analysis revealed
‘77Tr.
at p. 232;
Compi. Exh.
25.
178
Tr.
at pp.
151-152;
Comp. Exh.
21; Comp. Exh.
32 illustrates the approximate location
ofKallis’ sample, just north of the two P’s.
‘79Tr. atp. 154-155
‘80Tr. atp. 156
181
Tr. at p. 154
182
Tr. at p. 151-153,
155;
Comp. Exh 21
33
concentrations of oil at
664
mg/l.’83
Themaximum oil concentration allowed is 15 mg/i.’84
On March 22,
1995,
Mr. Kallis returned to SVA for
another inspection and prepared a
memo documenting his inspection.’85
On that day, Mr. Kallis spoke to Richard Frederick and
again observed oil in the Avon-Fremont Drainage Ditch coming from the farm
drainage
tile.’86
Mr. Kallis’ report ofhis March 22,
1995 visjt to SVA and the surrounding area contained
a summaryofrecent inspections by the Illinois EPA EmergencyResponse Unit and the illinois
EPA Field Operations
Section.’87
On December 23,
1994, January
5,
1995, March
1,
1995,
and
March
9,
1995, Illinois EPA personnel observed an oily discharge from the farm drainage tile
discharging into the Avon-Fremont Drainage Ditch.’88
On all ofthose occasions, there was a
diesel fuel odorpresent and a visible
oil sheen on the water in the Ditch.’89
This
1995 water pollution investigation at the Avon Drainage Ditch east of SVA’s
property was not the first one for Mr. Kallis or the Illinois EPA.’9°For example, he investigated a
similar waterpollution complaint on March
3,
1987.’~’
The Illinois EPA received a citizen
183
Tr. at pp. 155-156; Comp. Exh 21; Comp. Exh 23. Themaximum allowable
concentration
for
oil
is
15
mg/i.
35
Ill. Adm. Code 304.124(c).
184
35
Ill. Adm.
Code 304.124(c)
and 304.105.
185
Tr.
atp.
157-158; Comp. Exh. 22.
186
Tr. at p. 158, 160; Comp. Exh. 22.
187
Compl. Exh. 22.
188
Compi. Exh. 22.
~
Comp. Exh. 22 at p. 2-3.
190Tr. at 149; Compl. Exh.s 18, 19 (June 4, 1991, memo), 22, and 24; Resp. Exh.
6.
191
Tr. at 149; Compi. Exh.s 18, 19 (June 4, 1991, memo), 22, and 24.
34
complaint
ofoil in the Avon-Fremont Drainage Ditch listing
SVA as the possible source.’92 Kallis
traced the oil contamination in the ditch to the SVA
site.’93 SVA was pumping contaminated
‘water from their lagoon into a manhole that ultimately discharged through a drain tile into the
Avon-Fremont Drainage Ditch.’94
Mr. Kallis and others witnessed and documented instances ofwaterpollution caused or
allowed by Respondents in violation of the Act and the Board’s regulations over a period ofyears.
All of the respondents should be held liable forthe water pollution violation in 1994
and
1995.
3. RESPONDENTS
FINALLY INVESTIGATE THEIR OWN SITE!
Finally,
afterbeing asked
about the oil discharging into the Avon-Fremont Drainage Ditch,
in April of
1995,
the Frederick brothers contacted an
environmental engineer.’95 They contacted
James Huff(“Huff’) ofHuff and Huff, Inc.’96 He is an environmental consultant
and a licensed
professional engineer.’97 Initially, Respondents explained that they needed Huff’s services because
the United States Environmental Protection Agency (“USBPA”) was conducting
a 104(e)
investigationof their site.’98 TheUSIEPA had Respondents’ siteon their Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”) list because of an earlier
192
Compl. Exh. 18.
~
Tr. at 149; Compl. Exh. 18.
194
Tr. at
149-50;
Compl. Exh.
18.
195
Tr. at 335, 347.
‘96Tr.
at 334-335.
‘97Tr. at 334.
198
Tr. at 336
-
37.
35
release to the environment.’99 The USEPA inspection related to
the earlier environmental
release.20°
After the first conversation, Huff agreed to
meet the Fredericks at the
SVA site the
following week.20’ However, before that meeting ever took place, Huff received another call
from
one ofthe Frederick brothers on Saturday morning, April 22,
1995
•202
He explained to Huff that
Respondents had been excavating on their property and found a drain tile.203 When Respondents
opened the drain tile, there was a visible sheen or oil on the water.204 They agreed that for now
Respondents should pull out
part
ofthe drain tile
and
backfill that
areawith
a claytype soil to
stop the flow, and first thing Monday morning report the oil spill release to the USEPA.205
The drain tile flowed toward the Avon-Fremont Drainage Ditch.206 It was important to
stop
the flow from the drain tile because since December 1994, there had been an oil sheen reported
intermittently on the Avon-Fremont Drainage Ditch.207 They believed the drain tile on
SVA’s site
‘99Tr. at 337
-
38; Comp. Exh.
34, Appendix
C; Resp. Exh.
6.
200Tr. at337-38.
201Tr.at338-39.
202Tr
at 339, 347; Comp. Exh.
34, p.
14.
203Tr. at339-40.
204Tr. at 339-40.
205
Tr. at 340.
206Tr. at 341; Comp. Exh. 34.
207Tr
at 340
-
41;
Comp. Exh.
34, p. 14-
16.
36
was the one connected to
the Avon-Fremont Drainage Ditch.208 Theywanted to plug the drain tile
in order to
stop the flow ofoil to the Avon-Fremont Drainage Ditch.209
When
Huffwent to the
SVA site a few days later, he observed the condition ofthe Avon-
Fremont Drainage Ditch and the newly plugged farm drain tile.210 He saw absorbent booms placed
in the Avon-Fremont Drainage Ditch by USEPA contractors.21’ He saw an
oil sheen near where
the booms were already in place.212 And he observed that the oil sheen did not exist after traveling
a mile downstream from where the farm drain tile emptied into the Avon-Fremont Drainage
Ditch.213 A series ofbooms had been installed
at the pointwhere the drain tile emptied into the
Avon-FremontDrainage Ditch.214Though
there was some oil in this area, it was not apparent that
oil was still flowing out of the drain tile since it was
already plugged.2’5
In terms ofthe portion of
the drain tile
on SVA’s property, Huffnoted that the soil had been disturbed in the area, the drain
tile had been plugged, and the soil brought back to grade.216
208
Tr. at 340
-
41; Comp. Exh.
34, p.
14
-
16.
209
Tr. at
340
-
41; Comp. Exh. 34, p.
14
-
16.
210
Tr. at 348.
211
Tr.
at 348; Comp. Exhs. 33C, 34,
p.
14.
212
Tr.
at 348.
213
Tr.
at 348
-
49.
214
Tr.
at 349
-
50; Comp. Exh.
33B, upper right hand corner.
215Tr.at349-50.
216Tr.
at 352. See also Comp. Exh.
34,
p.
14: In November, 2000, Huffprepares a “Site
Investigation and Work Plan” which he prepared for SVA and submitted to the Illinois EPA. In
it, he notes that on “April 22,
1995,
Skokie Valley located a field tile exiting its property in the
northeast corner ofthe property. (See Figure 2
-
1). A
50 foot section of the drain tile was
37
On April 25,
1995, Respondents
excavated a trench on SVA’s property trying to
again
locate the drain tile.217 Huff observed oil in the center ofthe excavated trench.218
On April 28,
1995 Respondents discovered that one oftheir heating oil tanks for one of
their buildings on the west side oftheir property contained water.219 Water in the underground
storage tank indicated a potential hole in the tanks piping or the tank itself.22°They reported a
leaking underground storage tank incident to
IEIVIA, the Illinois Emergency Management Agency,
and speculated that the heating oil from the tank was the source ofthe oil in the Avon-Fremont
Drainage Ditch.22’
Also on April
~
Huffrecommended to Respondents that they purchase better booms for
the Avon-Fremont Drainage Ditch to protect the environment.222 Respondents purchased other
booms and assumed responsibility for the oil booms
on the Avon-Fremont Drainage Ditch from
the USEPA.223
Huff’s work at the site for Respondents did not stop
in April
1995,
with the better boom
recommendation and discovery of the leaking underground storage tank; it continued over eight
removed and both ends were plugged with clay soil. As ofthis
date, all known Skokie Valley
discharges through the Avon-Fremont Drainage Ditch stopped.”
217
Comp. Exh. 34, p.14.
218
Comp. Exh. 34,
p.
14.
219Tr. at 363
-64.
220
Tr. at 364.
221
Tr.
at 363
-
64, 367
-
68;
Comp. Exh. 34, p.
14- 15.
222
Tr.
at 351.
223
Tr.
at 351
-52;
Comp. Exh. 34,
p.
14.
38
years to
this day.224 For example, after reporting the leak to
IEMA, Huff began making
arrangements to have the tank removed.225 A series of test pits ortrenches were dug on the site to
see if there was evidence of any oil orpetroleum sitting on the ground water.226 One test pit was
dug on the south side ofSVA’s property east ofa former diesel and gasoline fuel island.227 It was
the general vicinitywhere a former gasoline underground storage tank was located.228
Oil and
water were present in the test pit at the site ofthe former pump island.229
After having the leaking underground storage tank removed, Huff determined that the
release ofheating oil was minor.230 Once he learned the heating oil release was minor, Huffno
longer believed the leaking underground storage tank was the source ofthe discharge into the
Avon-Fremont Drainage Ditch.23’ Huff now thought the oil sheen on the Avon-Fremont Drainage
Ditch from late 1994
through April
1995 was caused by one or more items on the south
side of
224
Tr.
at 368, 389
-
90; Comp. Exh.
34.
225
Tr.
at 368; Comp. Exh.
34, p.14
-
15. Eventually three underground storage tanks
were
removed from the site. Tr.
at 368
-
69.
See diagram, Compi. Bxh.
31.
226
Tr.
at 363, 383; Comp. Exh. 34,
p.
15.
227
Tr.
at 383; Comp. Exh. 34, p.
15.
228
Tr.
at 383.
229
Tr. at
383; Comp. Exh. 34, p.
15. The former fuel island or gas pumps were located
and
are drawn in the southeast (lower right hand) corner ofthe site near the plugged drain tile
that leads to the Avon-Fremont Drainage Ditch. See, for example, Huff’s diagrams in Comp.
Exh. 34,
Figure 2-1, p.
9; Figure 3-3, p.
22; and Figure 4-7, p.
56.
230Tr
at 385, 418;
Comp. Exh. p.
13
and
14.
231
Tr. at 385
-
86;
Comp. Exh. 34, p.
14.
39
Respondents’ property.232 The possible causes or items were the former underground gasoline
storage tank, a
fill
line from above ground storage tanks (“AST”) that went over to
the same fuel
pump island, or a line that went from hot mix asphalt to an underground storage tank.233
After extensive work on the SVA site, Huffconcluded that”.
.
.
the release to Avon-
Fremont Drainage Ditch was attributed to the abandoned gasoline and diesel lines from the ASTs
to the former pump island.
“234
IV. WHAT
IS
RESPONDENTS’ DEFENSE
TO VIOLATING THEIR PERMIT
AND
CAUSING WATER POLLUTION?
What is SVA’s defense? What
is the Frederick’s brothers defense to repeatedly violating
their NPDES permit and causing or allowing water pollution? After eight years oflitigation this is
a fair question. It seems that Respondents
defense, affirmative or otherwise, is that it is unfair to
bring an enforcement action
against the Fredericks individually because the violations occurred so
long ago and the People should be prohibited from enforcing Illinois
environmental law. In other
words, even though the law places personal liability on corporate
officers who are involved in
violations ofthe Act, or had the ability and
authority to control the acts or omissions that gave rise
to the violation, the Fredericks should be excused.235
Their affirmative defense is found in
“Respondent’s Answer and Affirmative Defense to
232
Tr. at 386
-
87.
233
Tr. at 386
-
87; Comp. Exh.
34, p.
14.
~
Comp. Exh.
34,
p.
14.
235
People v. C.J.R. Processing, Inc.,
eta!.,
269
Ill. App.
3d
1013, 647 N.E.2d 1035
(3d
IDist.
1995).
40
Complainant’s SecondAmended Complaint.” FollowingaMotion to Strike or Dismiss
:‘~fL.mi~tive
Defenses and a June
5,
2003, Board Order, Respondents’ affirmative defense is:
Under the doctrines oflaches and equitable estoppel, the Complainants
should not be
allowed to
amend its
Complaint to
include Respondents Edwin L. Frederick, Jr.
and
Richard J. Frederick, as Respondents
and these Respondents should not be required to
respond to
said Complaint.
The violations happened long ago, so it is unfair to name the Fredericks,
and the People should be
prohibited from enforcing environmental laws.
The Respondents
also insert other inferences into the record which might be confused
as
defenses. First, we triedto take care ofthe DMR issue long
ago so that is not an issue. Second,
had we not caused or allowed water pollution in
1994/95,
the People would not have sought to
enforce the repeated NPDES violations. And third, since the draft NPDES permit based on our
late renewal application that was never issued had different conditions, the violations while our
permit was in force are not violations. These are not really defenses.
First, mailing DMRs back and forth years
after they were due to the Illinois EPA does not
correct past reporting violations.236
The Act and Board regulations require compliance with the
reporting requirements of the permit.
Special Condition
19 of Respondents’ permit prohibits
Respondents from filing false reports with the Illinois EPA. It is the DMRs received, or not, at the
liii nois EPA that determines the violations.
Copies of other documents that do not indicate they
were ever received by the Illinois EPA are meaningless.
Second, Respondents are chargedwith causing, or allowing water pollution in
1994/95.
The original Complaint was filed in the fall of 1995.
It only included NPDES permit and DMR
236Resp. Exh.s 1,2,3,4
and
5.
41
violations. The original Complaint was later amended to
add the water pollution count against
Respondents.
The People ofthe
State ofIllinois originally brought this enforcement action against
Respondents because ofthe serious and repeated NPDES permit violations. It was
only after the
case was started that the People added the waterpollution count.
And third, the fact that a draft permit was passed around long after Respondents NPDES
permit expired is irrelevant in terms ofthe violations
committed while the permit was in effect.
Respondents were required to comply with the terms oftheir permit when it was
in force. They
did not. Respondents repeatedly discharged too much TSS in violation oftheir permit. Who
knows what the concentration limits would have been had Respondents maintained
a
representative accessible sampling point. Do not
forget, Respondents
decided where and when to
take the samples.
All these inferences Respondents try to assert as defenses fail just as their affirmative
defense fails. This case was filed in
1995.
Edwin Frederick
was President of SVA. Richard
Frederick was Vice President. Together they ran the day to day operations ofthe corporation.
Together they communicated with the Illinois EPA. Together they consulted with and retained an
environmental engineer to address their water
pollution violation. All this was before, or during
1995.
The Fredericks knew ofthis litigation. They were going to be the witnesses since they
were the ones dealing with the Illinois EPA and
signing
almost every document submitted to the
Illinois EPA on behalf ofSVA. During the course ofthis
litigation, in 1998, the Fredericks
sold
their business; they dissolved their corporation. The Fredericks are responsible for the destruction
of the corporate records after the sale and dissolution. Under these circumstances, the doctrines of
42
laches and equitable estoppel must fail. The Respondents, all of them, have no
defense to
the
repeated NPDES
permit violations
and causing or allowing water pollution.
V. ANALYSIS
Respondents thinly veiled defenses all fail. Regardless ofwhetherthey are affirmative, or
not, the facts remain the same: Respondents repeatedly violated theirNPDES
permit and caused
or allowedwater pollution.237With no defenses left
forRespondents to assert, the issue
becomes
whether the violations are unreasonable. Section 33(c) ofthe Actprovidesan analysis witha list
offactors to help determinewhether Respondents’ violations were unreasonable.
Section
3 3(c) of
the Act, 415 ILCS 5/33(c) (2002), provides, in pertinent part, as follows:
In making its orders and determinations, the Board shall take into consideration all the
facts
and circumstances bearing upon the reasonableness ofthe emissions, discharges, or
deposits involved including, but not limited to:
1.
the character and degree of injury to, or interference with the protection ofthe
health, general welfare and physical property ofthe people;
2.
the social and economicvalue ofthepollution source;
3.
the suitability or unsuitabilityofthe pollution source
to the area in which it is
located, including the question ofpriority or location in the area involved;
4.
the technical practicality and economic reasonableness ofreducing or eliminating
the emissions, discharges or deposits resulting from such pollution source; and
5.
any subsequent compliance.
Factor number 1: the character and
degree of injury to, or interference with the
protection of the health, general welfare and physical property of the people.
Factornumber
one can be broken down into two different analyses: one for the technical
NPDES permit violations, Counts I, II, III, and V;
and one for the waterpollution violation, Count
237
See, for example, Compi. Exh. 34 and Resp.
Exh.
6.
43
IV. Both analysesweigh against Respondents, but it is difficult to measure
the degree ofinjury
‘when referring to Respondents
technical violations.
Respondents flied false reportsby apparently photocopying~DMRsand submittingthem to
the Illinois EPA. Respondents repeatedly failed
to
file DMRs.
When Respondents did file DMRs,
they were often late and indicated excess TSS
discharges. Throughout the valid permit period,
IRespondents never had an accessible representative effluent sampling point.
And they failed to
apply to
renew their NPDES permit on time and continued to operate without one. Did
Respondents fail to file DMRs and file false DMRs because they did not take ortest samples? Did
the test results indicate such high levels ofTSS, or oils and
grease flowing into Grays Lake that
they chose not to submit them? How did they get the samples? Where did they take them from?
All these violations
serve to undermine the NPDES program and prevent the Illinois EPA from
doing its job
-
protecting the environment. Only the Respondents know the degree of injury they
caused by not complying with their permit requirements.
SVA discharged petroleum-based products into the Avon-Fremont Drainage Ditch, a water
ofthe
State ofIllinois, many times.238 SVA had a long history ofwater quality violations before
the 1994/95 Avon Drainage Ditch petroleum release.239 Mr. Kallis, the Illinois EPA inspector, and
Mr. Huff, Respondents’
own environmental consultant, spell out the long history of citizen
complaints about oil in the Ditch
and oil releases from the SVA site.
The Avon-Fremont Drainage Ditch flows through a populated area. Citizens who lived
near the Avon-Fremont Drainage Ditch were subjected to petroleum-contaminated water and
238
See, for example, Compl. Exh. 34 and Resp.
Exh.
6.
239
See, for example, Compl. Exh.
34 and Resp.
Exh.
6.
44
diesel odors many times over the years. The Frederick brothers, familiar with the history ofthe
SVA site, asphalt plant, fuel island, and underground storage tanks, never triedto clean up their
site before
1995.
By
1995,
their site was in such deplorable condition that eight years later, their
eiivironmental engineer is still working to clean it.
We do notknow the degree ofinjury
respondents
caused to the health and general welfare
ofthepeople or to Grays Lake
in terms ofthe NPDES permit violations, but the repeated TSS
violations provide an idea. Obviously, oil discharging through a farm field drain tile into waters of
the state severely compromises the health and general welfare ofthe people. Factornumber
1
weighs heavily against Respondents.
Factor number 2: the social and economic value of the pollution source.
Although Respondents employed people, and paid taxes, the social and
economic value of
their asphalt paving business should be weighed against the environmental harm caused. They
polluted waters ofthe state with oil and
excess sediment. The lives ofthe citizens who live near
Grays Lake and the Avon-Fremont Drainage Ditch
were interfered with and adversely affected;
the citizens have the Constitutional right to
a healthful environment.240
In addition to the
environmental harm and impact on citizens causedby Respondents’
violations, the Board should
also take into account the costs incurred by the public.24’
Under these circumstances, factor
number two should not weigh in favor ofRespondents.
240
Illinois Constitution, Article
XI, Section 2.
241
For example, consider only the water pollution violation in 1994/95. Personnel from
the Illinois EPA (OER and Field Inspector) and USEPA went to
the site numerous times
over the
5
month period. The USEPA also had to hire a contractor to place booms
in the Avon Drainage
Ditch.
45
Factor 3: the suitability or unsuitability of the pollution source to the area in which it
is located,
including the question of priority or location in the area involved.
This factor
too
is difficult to analyze.
SVA and before them, Liberty Asphalt was at the
site. Both businesses were asphalt paving businesses. Priority of locationreally is not an issue
since most ofthe land surrounding SVA’s site is farmland. In other
words,
if Respondents
complied
with theirNPDES permit, did not discharge excess amounts ofsediment, or pollute the
surrounding waters ofthe State, the People would not take issue with the suitability ofSVA to the
area.
The
problem, ofcourse, arises because Respondents did not comply with their NIPDES
permit requirements, did discharge excess sediment,
and did pollute waters ofthe state. Since
each ofthese violations were repeated, and impacted Grays Lake and the Avon Drainage Ditch on
more than one occasion, the suitability oflocation must weigh against Respondents.
Factor 4: the technical practicability and economic reasonableness of reducing or
eliminating the emissions resulting from such pollution source.
Factor
four
can
also
be broken down
into two analyses.
One for correcting the technical
NPDES
permit violations and one for
preventing the
1994/95 Avon Drainage Ditch water
pollution incident. Before thinking ofeach analyses separately, it
is worth noting that Respondents
never claimed the costof compliance was an issue. Respondents could
afford to comply with the
environmental
laws.
Was
it technicallypracticable and economically reasonable for Respondents to submit
DMRs each month, even during months they did not discharge?
..
.
to create and maintain an
accessible effluent sampling point?
..
.
to take steps
to limit theirTSS
concentrations?
.
.
.
or to
apply for theirNPDES permit on time? Of course it was.There is practicallyno cost associated
with complying with the permit requirements except to pay for the water sample test and postage
46
lo mail
in
the DMR.
Was
it
technically practicable and economically reasonable for Respondents to prevent the
water pollution that occurred in the Avon Drainage Ditch in
1994/95?
Yes. James Huffcould
have advised to remove the underground storage tanks that were no longer in use and to
remediate
the site.
.
.
had Respondents bothered to
contact him after any ofthe other earlier water quality or
water
pollution incidents. Respondents chose not to take any steps to clean their site until
1995,
when the USEPA and the Illinois EPAkept identifying their property as the only possible source
of oil in the Avon-Fremont Drainage Ditch. Even then Respondents initially denied having
underground storage tanks on their property. The fix on all counts was technically practicable and
economically reasonable forRespondents. This factor weighs heavily against them.
Factor
5:
any subsequent compliance.
Any subsequent compliance? Yes. Respondents flied some DMRs
after their permit
expired. However, their permit did expire, and it was neverrenewed. Respondents continued to
discharge from their sitewithout apermit. Someof the discharges exceeded the TSS
concentration limits set by the original permit. And, eight years later, Respondents are still trying
to remediate the site by removing all the oil contamination.
There have been no further reports of
water pollution since Respondents plugged the drain tileon their property. Nevertheless, since
Respondents
continued to discharge without a permit and continue to remediate the site,
this
factor must also weigh against them.
Factors
1,
3, 4,
and
5
weigh heavily againstRespondents.
Factors 2 may not weigh against
Respondent,
but does not weigh in Respondents favor.
Taking all the
facts and circumstances into
considerationwith the factors
listed in section 33(c), Respondents repeated violations are
47
unreasonable.
VI.
CONCLUSION
WHEREFORE,
Complainant respectfully requests that this Board find thatRespondents
violatedthe Act as alleged in eachcount ofthe SecondAmendedComplaint, order Respondents
to immediately cease and desist from further violations ofthe Act and Board Regulations,
assess a
civil penalty against Respondents,
assess Complainant’s costs and fees in this action against
Respondents, and
such other relief the Board deems appropriate.
PEOPLE OF THE STATE OF
ILLINOIS,
ex rel.
LISA MADIGAN, Attorney
General of the State ofIllinois
MATTHEW J. DUNN,
Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental
Bureau
BY:
Mitchell L. Cohen
Assistant Attorney General
MITCHELL L. COHEN
BERNARD MURPHY
Assistant Attorneys General
Environmental Bureau
188 W. Randolph St., 20thFloor
Chicago, Illinois 60601
(312) 814-5282/(312) 814-3908
I:\MLC\SkokieValley\ClosingBrief.wpd
48
CERTIFICATE OF SERVICE
I, MITCHELL COHEN,
an Assistant Attorney General,
certify
that on the
15th
day of January,
2004,
I caused to be served by
placing in the U.S.
Mail with appropriate postage a Motion for
Leave
to File Instanter and The People of the State of Illinois’
Closing Argument and Post Trial Brief to the parties named on the
attached service list.
Assistant
Attorney
General
I
\MLC\SkokieVa11ey\C1osAr9NotofFi1in~
wpd
