C~r~:P!~S
O~~1CE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SEp 2 2 2003
PEOPLE
OF THE STATE OF ILLINOIS,
S ~
OF ILLINOIS
I
)
Pol/utlo,? COfl~~0
Boç~rd
/
v.
)
No. PCB 96-98
SKOKIE VALLEY ASPHALT, CO., INC.,
EDWIN L. FREDERICK, JR.,
individually and a~ 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 September 22, 2003, we filed with
the Illinois Pollution Control Board
Complainant’s Pre-hearing
Memorandum, ~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. 0
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 S. Second Street, Suite 402
Springfield, Illinois 62704
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
PEOPLE OF THE STATE OF ILLINOIS,
)
SEP 22 2003
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
v.
)
No. PCB 96-98
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
Slcokie Valley Asphalt Co., Inc.,
Respondents.
COMPLAINANT’S PRE-HEARING MEMORANDUM
Comes now, the People of the State of Illinois, Complainant,
and pursuant to Hearing Officer Sudman’s July 11, 2003, Order
submits the following prehearing memorandum:
I. Introduction
Complainant filed a Second Amended Complaint against
Respondents, Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick. The Second Amended
Complaint alleges five counts against Respondents: 1. Failure to
Comply with Reporting Requirements
-
Filing False Reports; 2.
Late Application for Renewal of NPDES Permit; 3. Failure to
Comply with Sampling and Reporting Requirements; 4. Water
Pollution; and 5. Violation of NPDES Permit Effluent Limits.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
II. Facts
Through lengthy litigation
and discovery’,
the following
facts are not in dispute:
Skokie Valley Asphalt, Co., Inc.
(“SVA”) was an Illinois
corporation located in Grayslake.2 SVA operated and/or exercised
control over its facility in Grayslake at all relevant times,
from the time it owned or leased the site until May, l998.~SVA,
after amending their name to LRF, Inc., filed Articles of
Dissolution with the Illinois Secretary of State December 28,
1998.~
While in business in Grayslake, SVA was a vehicle storage,
dispatching, and material storage facility.6 The SVA site in
Grayslake had a lagoon which discharged into a storm sewer ditch,
then into the Avon Drainage Ditch and ultimately into Third Lake.6
On September 4, 2003, the Board issued an Order granting,
in part, Complainant’s Second Motion to Compel Respondents to
Respond to Discovery Requests. This Prehearing Memorandum, due
September
22~’, does not include the information and materials
Respondents must provide by September
30th•
Therefore, this
Prehearing Memorandum may have to be supplemented following
Respondents complying with the Board’s Order.
2
Resp.s’ Answer, para. 4.
SVA’s Response to
1st
Set of Interrogatories, No. 9.
~‘
Resp.s’ Response to Request for Production of Documents.
~ Resp.s’
Response to Request for Admission of Facts, No. 7.
6
Resp.s’ Response to Req. for Admission of Facts, No. 10.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
2
The
SVA site also had underground storage tanks (“UST”)
.~
Because of SVA’s lagoon discharging into waters of the
state, the Illinois Environmental Protection Agency (“Illinois
EPA”) issued SVA an NPDES Permit.8 The NPDES Permit issued to SVA
required SVA, inter alia, to accurately comply with NPDES
reporting requirements
.~
SVA’s NPDES Permit expired on March 1,
1991.10
SVA failed to
submit an NPDES permit application to the Illinois EPA for
renewal by September 2, 1990.” SVA submitted an application for
its NPDES permit renewal to the Illinois EPA on June 3, 1991.12
Also, while in business, Respondent Edwin L. Frederick, Jr.
was the President of SVA.’3 He had a 50 per cent ownership
interest in SVA.’4 As President, Edwin Frederick was responsible
~‘
Resp.s’ Response to Req. for Admission of Facts, No. 60.
~ Resp.s’ Response to Req. for Admission of Facts, No. 11.
~ Resp.s’ Response to Req. for Admission of Facts, No. 12.
10
Resp.s’ Response to Req. for Admission of Facts, No. 22.
~ Resp.s’ Response to Req. for Admission of Facts, No. 24.
12
Resp.s’ Response to Req. for Admission of Facts, No. 25.
13
Resp.s’ Answer, para. 5; Resp.s’ Response to Req. for
Admission of Facts, No. 2; Resp. SVA’s Responseto
Interrogatories, para.s 3 and 7; Resp. Edwin Frederick’s Response
to Interrogatories, para. 1; and Resp. Richard Frederick’s
Response to Interrogatories, para. 1.
14
Resp.s’ Edwin and Richard
Frederick Response to
Interrogatories, para.s 3 and4.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
3
for the entire operation.’5 He was President during the entire
period of alleged violations. “His duties and responsibilities
included financial matters. Financial matters included liaison
with banks and suppliers and purchasing material, making
payments, managing payroll and reviewing accounts receivable and
accounts payable. He was also responsible for sales and preparing
bid quotations. The sales and price quote duties involved
preparation of price quotes, estimating jobs, negotiations,
contracts, calling on customers and submitting bids. His duties
also included supervising jobs at job sites. The supervision
duties involved on-site meetings, reviewing on-site work, daily
consultation with foreman and engineers, liaison with state,
county, federal officials and private owners for whom work was
performed.”Also, 6while
in business, Respondent Richard Frederick was
Vice President of
SVA.’7 He had a 50 per cent ownership interest
in SVA.’8 As Vice President,
Richard Frederick was responsible
for
15
SVA’s Response
to Interrogatories,
para. 7.
16
Resp.s’ Edwin and Richard Fredericks Response to
InterrogatorieS,
para. 1.
17
Resp.s’ Answer, para. 6; Resp,s’ Response to Req. for
Admission of Facts, No. 3; Resp. SVA’s Response to
Interrogatories,
para.s
3 and 7; Resp. Edwin Frederick’s Response
to Interrogatories, para. 2; and Resp. Richard Frederick’s
Response to Interrogatories, para. 2.
18
Resp.s’ Edwin and Richard Frederick Response to
Interrogatories, para.s 3 and4.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
4
the entire operation.’9 “His duties and responsibilities included
construction management. Construction management involved
handling personnel, equipment and material scheduling and
budgeting for all work performed. The personnel work involved the
hiring and control of employees and the review and approval of
all time cards, union contracts and personnel relations issues.
Richard was also responsible for all equipment matters including
purchasing and maintaining equipment, daily review of equipment
matters with outside maintenance shops. Richard’s duties included
the scheduling of all jobs, employees and subcontractors.
He also
was responsible for all traffic controls and safety matters.
Richard also reviewed and approved all contact items, bills and
invoices.”20 Richard Frederick also signed the Discharge
Monitoring Reports (“DMR”) SVA submitted to the Illinois EPA.~’
III. Discussion
The Illinois Environmental Protection Act (“Act”) is a
strict liability statute; no proof of guilty knowledge or
mens
rea
is necessary to a finding of guilt.22 The stated purpose of
the Act is “to establish a unified state-wide program
19
SVA’s Response to Interrogatories,
para. 7.
20
Resp.s’ Richard and Edwin Frederick Response to
Interrogatories,
•para. 2.
2’Deposition Transcript at 22, 26-27, 35, 36, 60, and 61.
22
See
Perkinson v. PCB, 187 I1l.App.3d 689, 694, 543 N.E.2d
901, 904-905 (3d Dist. 1989)
THIS DOCUMENT IS FILED ON RECYCLED PAPER
5
supplemented by private remedies, to restore, protect and enhance
the quality of the environment, and to assure that adverse
effects upon the
environment are fully considered and borne by
those who cause them.”23 “The terms and
provisions of the Act
shall be liberally construed so as to effectuate the purposes of
the
TheAct.”Pollution24
Control Board’s (“Board”) regulations are
promulgated pursuant to the Act. Respondents are liable for
penalties for committing violations of both the Act and the
Board’ s regulations
.,25
A. The Respondents and the Bases for Their Liability
1. Respondent SVA
Respondent SVA was incorporated in the State of Illinois
during all times relevant to this matter.
Section 3.315 of the
Illinois Environmental Protection Act (“Act”) broadly defines
“person” for purposes of liability.26
Expressly included in the
definition of person under Section 3.315 of the Act is a
Respondent
“corporation,
SVA,
association,
a corporation,
and
clearly
joint
falls
stock
within
company.”
the
27
23
415 ILCS 5/2 (b) (2002)
24
415 ILCS 5/2 (c) (2002)
25
415 ILCS 5/42 (2002).
26See 415 ILCS 5/3.315 (2002)
.
27
Id.
THIS
DOCUMENT IS FILED ON RECYCLED PAPER
6
definition of person under the Act and is, therefore, liable for
the violations of the Act.
2. Respondents Richard J. Frederick and Edwin Frederick
The standard for corporate officer liability in
environmental enforcement actions is set forth in People v.
C..J.R. Processing, Inc.,
et
a1.28
The C.J.R. case involved a
facility which produced and stored large amounts of waste.29 As
in the instant case, the State sued both the company and its
corporate officers, including its president, for violations of
the Act.3° The C.J.R. Court held that corporate officers are also
“persons” as defined under Section 3.315 of the Act.3’ The court
reasoned that, first, the definition of person under Act
expressly includes individuals,
and does not exclude corporate
of ficers.32
Second, the General Assembly intended for the Act to
be liberally construed; a constricted interpretation
of Section
3.315 would not serve the Act’s express purpose of imposing
responsibility upon those who cause or allow harm to the
28
See 269 Ill.App.3d 1013, 647 N.•E.2d 1035 (3d Dist. 1995)
29
Id. at 1014, 647 N.E.2d at 1036.
30
Id..
31
Id.
at 1016, 647 N.E.2d a~1037. Section 3.315 of the Act
was formerly numbered Section 3.26 of the Act.
32
Id.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
7
environment.33
Imposing liability
only on the corporation and not
on the individuals involved in harming the environment would
undermineThe
C.J.R.the
Act’sCourtpurpose.further34
held that 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.35
The C.J.R. Court’s use of the term “personal
involvement” in addition to “active participation”
shows that the
court intended liability to attach to more than just those
corporate officers who control the day-to-day operations at a
facility. Indeed, other courts have articulated this reasoning.
In United
States v. Northeastern Pharmaceutical & Chemical Co.,
et a1.~one
of the cases upon which the C.J.R. decision was
based, the federal government sought to have a corporation’s
president and vice-president held personally liable for their
company’s improper hazardous waste disposal.36
The Northeastern
Court held that corporate officers can be held individually
~ Id.
MId.
at 1018, 647 N.E.2d at 1038.
Id.
at 1017-1018, 647 N.E.2d at 1038.
36
Id.
at 1017, 647 N.E.2d at 1038 (citing to Northeastern,
810 F.2d 726 (8th Cir. 1986)
)
THIS DOCUMENT IS FILED ON RECYCLED PAPER
8
liable if they were personally involved in or directly
responsible for corporate acts or omissions in violation of the
environmental statute.37
Liable corporate officers not only
included those in control of the day-to-day operations, but also
corporate officers with ultimate authority to control the
disposal of the wastes.38 Moreover, there is “an emerging body of
state and federal law holding individual corporate officers
liable for violations of
. . .
environmental laws when those
officers either participated in those violations, controlled or
supervised the corporate activities that resulted in the
violations,
or had the power to prevent violations from occurring
and failed
Respondents
to exercise
Edwin
that
L. Frederick,
power.”39
Jr. and Richard J. Frederick
(see Section II,
supra)
,
as corporate officers of SVA, were in
control of the day-to-day operations at the site and directly
responsible for the acts or omissions that gave rise to the
environmental violations at the site, including discharges from
the SVA lagoon, Discharge Monitoring Reports filed with the
Illinois EPA, and the leaking underground storage tank.
Therefore, under the principles set forth by the C.J.R. Court,
See
810 F.2d at 745.
38 Id.
~ See BEC Corp. v. Dep’t of Envtl. Protection,
775 A.2d 928,
940-941 (Conn. 2001) (citing to the courts’ decisions in
Northeastern and C.J.R., among other cases)
THIS DOCUMENT IS FILED ON RECYCLED PAPER
9
Edwin L. Frederick, Jr. and Richard J. Frederick are personally
liable for the violations.
~.
The Violations of the Act and the Board’s Regulations
Section 3.550 of the Act, 415 ILCS 5/3.550 (2002), provides
the following definition:
“WATERS” means all accumulations of water, s~irface and
underground, natural, and artificial, public and private, or
parts thereof, which are wholly or partially within, flow
through or border upon this State.
The farm drainage tile, Avon Drainage Ditch, and Third Lake
are located in, and therefore are, waters of the State of
Illinois.
1. Section 12(f) of the Act (Count I)
Count I of the Second Amended Complaint alleges that the
Respondents violated Section 12(f) of the Act, 415 ILCS 5/12(f)
(2002), in that Respondents filed false reports. Section 12(f)
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,
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 38(b) of this Act, or in
violation of any term or condition imposed by such
permit, or
in violation of any NPDES permit filing
requirement established under Section 39(b), or in
violation of any regulations adopted by the Board
or of any order adopted by the Board with respect
to the NPDES program (emphasis added).
THIS DOCUMENT IS FILED ON RECYCLED PAPER
10
Section 305.102(b) of the Board’s regulations, 35 Ill. Adm.
Code 305.102(b), provides as follows:
Reporting Requirements
b. Every holder of an NPDES Permit is required to comply
with the monitoring, sampling, recording and reporting
requirements set forth in the permit and this chapter.
Standard Condition No. 19 of Respondents’ NPDES Permit No.
1L0065005 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 required to be maintained under the permit.
On April 25, 1991, Respondents filed with the Illinois EPA
their DMR for the month of December 1990. Respondents falsified
theDecember 1990 DMR by duplicating the November 1990 DMR,
altering the date from “90/11/01 to 90/11/30”, to
T190/l2/0l
to
90/12/30” and then submitting the duplicate as the December 1990
DMR.
Also on April 25, 1991, Respondents filed with the Illinois
EPA their DMR for the month of January 1991.
Respondents
falsified the January 1991 DMR by duplicating the February 1991
DMR, altering the date from “91/02/01 to 91/02/28”, to “91/01/01
to 91/01/28”, and then submitting the duplicate as the January
1991 DMR.
By submitting false DMRs, Respondents violated Standard
Condition No. 19 of their NPDES permit. By submitting false
records/reports in violation of Standard Condition No. 19 of
THIS DOCUMENT IS FILED ON RECYCLED PAPER
11
their NPDES permit, Respondents violated Section 305.102(b) of
the Board’s regulations. By violating Section 305.102(b) of the
Board’s regulations, Respondents violated section 12(f) of the
Act.
2.
Section 12(f) of the Act and Sections 309.102(a) and
309.104(a) of the Board’s Regulations (Count II)
Count II of the Second Amended Complaint again alleges that
the Respondents violated Section 12(f) of the Act. Count II also
alleges violations of Sections 309.102(a) and 309.104(a) of the
Board’s Regulations, 35 Ill. Adm. Code 309.102(a) and 309.104 (a)
in that Respondents filed an NPDES Permit renewal application
late. Those sections of the Board’s regulations provide,
respectively, as follows:
NPDES Permit Required
a. Except as in compliance with the provisions of the Act,
Board regulations, and the CWA (33 U.S.C. 1251 et
seq.),
and the provisions and conditions of the NPDES
permit issued to the discharger, the discharge of any
contaminant or pollutant by any person into waters of
the State from a point source or into a well shall be
unlawful.
***
Renewal
a) Any permittee who wishes to continue to discharge after
the expiration date of his NPDES Permit shall apply for
reissuance of the permit not less than 180 days prior
to the expiration date of the permit.
The Respondents NPDES Permit No. 1L0065005 expired on March
1, 1991. The Respondents did not submit to the Illinois EPA an
THIS DOCUMENT IS FILED ON RECYCLED PAPER
12
application for reissuance of that NPDES permit until June 3,
1991.
Respondents continued to discharge from the lagoon on their
Site via the farm drainage tile, to Avon Drainage Ditch, and then
into Third Lake even after the expiration of their NPDES permit
on March 1, 1991. Respondents failed to apply for the renewal of
their NPDES permit by September 2, 1990, which was 180 days
before the March 1, 1991 expiration date. Therefore, Respondents
violated Section 309.104(a) of the Board’s regulations. Since
Respondents continued to discharge into the farm drainage tile,
the Avon Drainage Ditch, and into Third Lake in violation of
their NPDES permit, they were in violation Section 309.102(a) of
the Board’s regulations. By violating Sections 309.102(a) and
309.104(a) of the Board’s Regulations, Respondents violated
section 12(f) of the Act.
3. Section 12(f) of the Act, and Sections 305.102(b)
and 309.102(a) of the Board’s Regulations (Count III)
Count III of the Second Amended Complaint again alleges that
Li:ie
Respondents violated Section 12(f) of the Act. In addition,
Count III alleges that Respondents violated Sections 305.102(b)
and 309.102(a) of the Board’s regulations, 35 Ill. Adm. Code
305.102(b) and 309.102(a) by failing to comply with sampling and
reporting requirements.
Special Condition No. 1 of Respondents’ NPDES Permit No.
IL0065005 provides as follows:
THIS DOCUMENT IS FILED ON RECYCLED PAPER
13
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.
From at least November 1988 and continuing to February 1992,
Respondents did not maintain an accessible effluent sampling
point at the SVA facility for the discharge from the lagoon into
the farm drainage tile and therefore could not have taken samples
representative of the discharge.
Special Condition No. 4 of Respondents’ NPDES Permit No.
1L0065005 provides as follows:
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 IEPA, no later
than the 15th of the following month, unless otherwise
specified by the Agency.
Respondents failed to submit ever DMR5 to the Illinois EPA
for eight months, namely November 1988, April 1989, June 1989,
August 1989, October 1989, November 1989, December 1989, and July
1992.
Respondents thus failed to comply with Special Condition
No. 1 and Special Condition No. 4 of their NPDES permit.
By
failing to comply with the conditions in its NPDES permit,
Respondents violated Section 305.102(b) and 309.102(a) of the
Board’s regulations.
By violating Sections 305.102(b) and
309.102(a) of the Board’s regulations, Respondents violated
Section 12(f) of the Act
THIS DOCUMENT IS FILED ON RECYCLED PAPER
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4. Section 12(a) of the Act, Sections 302.203, 304.105 and
304.106 of the Board’s Regulations (Count IV)
Count IV of the Second Amended Complaint alleges that
Respondents violated Section 12(a) of the Act, 415 ILCS 5/12(a)
(2002) and Sections 302.203, 304.105 and 304.106 of the Board’s
regulations,
35 Ill. Adm Code 302.203, 304.105 and 304.106, and
as
such caused or allowed water pollution.
On December 23, 1994, January 5, 1995, March 1, 1995, March
9, 1995, March 22, 1995, and April 18, 1995 there was an oily
discharge from a farm drainage tile located .25 miles east of
SVA. The farm drainage tile discharges to the Avon Drainage
Ditch, which flows north through the Village of Grayslake to
Third Lake.
The oily discharge from the farm drainage tile to Avon
Drainage Ditch resulted in a fuel odor and a visible surface oil
sheen on the Avon Drainage Ditch.
On March 3, 1995, the Illinois EPA took a sample of the
effluent from the farm drainage tile, and this sample revealed
c)il
and grease levels of 664 milligrams per liter (mg/l)
Section 3.165 of the Act, 415 ILCS 5/3.165 (2002), provides
the following definition:
“CONTAMINANT”
is any solid, liquid, or gaseous matter, any
odor, or any form of energy, from whatever source.
Section 3.545 of the Act, 415 ILCS 5/3.545 (2002), provides
the following definition:
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“WATER POLLUTION’S is such alteration of the physical,
thermal, chemical, biological, or radioactive properties of
any waters of the State, or such discharge of any
contaminants into any waters of the State, as will or is
likely to create a nuisance or render such waters harmful or
detrimental or injurious to public health, safety, or
welfare, or to domestic, commercial, industrial,
agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish, or other aquatic life.
The oily discharge is a contaminant. The oily discharge
from the farm drainage tile to Avon Drainage Ditch, resulting in
fuel odor and a visible surface oil sheen constitutes water
pollution.
To summarize, Respondents caused or allowed the
discharge of contaminants to waters of the State of Illinois.
Section 302.203 of the Board’s regulations provides, in
pertinent part, as follows:
Offensive Conditions
Waters of the State shall be free from sludge orbottom
deposits, floating debris., visible oil, odor, plant or algal
growth, color or turbidity of other than natural origin...
Respondents caused or allowed oil to be discharged to the
Avon Drainage Ditch, causing a visible oil sheen on the surface
of the water, in violation of Section 302.203 of the Board’s
regulations.
Section 304.106 of the Board’s regulations provides, in
pertinent part, as follows:
Section 304.106 Offensive Discharges
In addition to the other requirements of this 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.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
16
Respondents caused or allowed oil to be discharged to the
Avon Drainage Ditch, where it caused a visible oil sheen and
emitted odors, in violation of Section 304.106 of the Board’s
regulations.
Section 304.124(c) of the Board’s regulations provides, in
pertinent part, as follows:
c. Oil may be analytically separated into polar and
nonpolar components.
If such separation is done,
neither of the components may exceed 15 mg/i (i.e. 15
mg/l polar materials and 15 mg/i nonpolar materials)
An effluent sample of Respondent’s discharge showed 664
mg/i. This sample exceeded the standard of 15 mg/i set forth in
Section 304.124(c) of the Board’s regulations.
Section 304.105 of the Board’s regulations, 35 Ill. Adm.
Code 304.105, provides, in pertinent part, as follows:
Violation of Water Quality Standards
In addition to the Other requirements of this Part, no
effluent shall, alone or in combination with other sources,
cause a violation of any applicable water quality standard.
Respondents’ discharge to the Avon Drainage Ditch caused or
allowed effluent to exceed the standard set forth in Section
304.124(c) of the Board’s regulations and therefore resulted in
Respondents violating Section 304.105 of the Board’s regulations.
Section 12(a) of the Act 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
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17
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;
Respondents caused or allowed the discharge of contaminants
to waters of the State of Illinois which is a violation of
Section 12(a) of the Act. In addition, by causing violations of
Sections 302.203, 304.105, and 304.106 of the Board’s
regulations, Respondents have also violated Section 12(a) of the
Act.
5. Section 12(f) of the Act, and Sections 304.141(a) and
309.102(a) of the Board’s Regulations
(Count V)
Count V of the Second Amended Complaint again alleges that
the Respondents violated Section 12(f) of the Act.
Count V also
alleges violations of Sections 304.141(a) and 309.102(a) of the
Board’s regulations,
35 Ill. Adm. Code 304.141(a) and 309.102(a)
in that Respondents exceeded their NPDES Permit effluent limits.
Section 304.141(a) of the Board’s regulations,
35 Ill. Adm.
Code 304.141(a) provides, in pertinent part,:
NPDES Effluent Standards
a. No person to whom an NPDES Permit has been issued may
discharge any contaminant in his effluent in excess of
the standards and limitations for that contaminant
which are set forth in his permit.
Respondents’ NPDES Permit No. 1L0065005 contains the
following effluent limits for total suspended solids (“TSS”)
TSS Concentration Limits (mg/l)
THIS DOCUMENT IS FILED ON RECYCLED PAPER
18
30 day Average
Daily Maximum
15.0
30.0
During some months for a period beginning in August of 1991
and continuing until April of 1995, Respondents caused or allowed
the discharge of effluent from their facility to exceed
concentration limits set forth in NPDES Permit No. IL0065005 as
follows:
TSS Concentration Limits (mg/i)
DATE
30 day Average
Daily Maximum
April 1995
126.0
126.0
June 1993
35.0
35.0
May 1993
24.0
December 1992
24.0
November 1992
22.0
February 1992
18.0
October 1991
41.0
41.0
September 1991
25.0
August 1991
55.0
55.0
These readings are set forth in the DMRs that Respondents’
submitted to Illinois EPA for the SVA facility’s discharge for
the nine months listed above.
Respondents have therefore discharged effluent which
contained TSS that exceeded the limits set in their NPDES Permit.
By violating the TSS effluent limits set in their NPDES Permit,
Respondents violated Section 304.141(a) of the Board’s
regulations. By violating the terms of their NPDES permit and by
violating Section 304.141(a) of the Board’s regulations,
Respondents have violated Section 309.102(a) of the Board’s
regulations. By violating Sections 304.141(a) and 309.102(a) of
THIS DOCUMENT IS FILED ON RECYCLED PAPER
19
the Board’s regulations, respondents have also violated section
12(f) of the Act.
IV.
The Complainant’s Witnesses at Trial
The Complainant may call the following witnesses at trial:
Chris Kallis
of Illinois EPA, Bureau of Land, Field
Operations Section will testify as to his observations made
during his visits to the SVA facility. Kallis will also
provide testimony regarding Illinois EPA reports, records,
and filings.
Ken Savage and/or Don Klopke (Illinois EPA, Office of
Emergency Response) and Betty Lavis (U.S.
EPA) will testify
that they observed an oily discharge from the SVA facility,
in the farm drainage tile, and in. the Avon Drainage ditch.
Mike Garretson of Illinois
EPA, Bureau of Water, Compliance
Assurance Section will testify regarding SVAs NPDES Permit
requirements, the filing and record keeping of DMRs at the
Illinois EPA, and SVA’s filing of DMR5.
Respondent Richard J. Frederick will testify
that he was
responsible for the day-to-day operations at SVA during the
period of time that the alleged violations occurred.
He
will also testify that he signed all of the DMRs at issue in
this matter.
Respondent Edwin L. Frederick, Jr. will testify that he was
also responsible for the day-to-day operations at SVA during
the period of time that the alleged violations occurred. He
will also testify that he signed the June 3, 1991 NPDES
Permit application.
James Huff of Huff & Huff regarding his business,
relationship with Respondents, contamination found on the
SVA site, and remediation work he has performed for SVA at
their Grayslake site.
The Complainant also reserves the right to call additional
witnesses as necessary.
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NPDES Permit No. 1L006005 issued by
the Illinois EPA to SVA.
November 1990 DMR submitted by SVA
to Illinois EPA.
December 1990 DMR submitted by SVA
to Illinois EPA.
January 1991 DMR submitted by SVA
to Illinois EPA.
February 1991 DMR submitted by SVA
to Illinois EPA.
SVA’s June 3, 1991, NPDES Permit
Renewal Application.
March 1, 1995 Lab Sample Sheet and
Results.
Illinois EPA Inspection Report
dated March 22, 1995.
Illinois EPA Memorandum dated May
12, 1995.
Illinois EPA Photo of oily
discharge from SVA’s facility.
Illinois EPA Photo of oily
discharge from SVA’s facility.
Illinois EPA Photo of oily
discharge from SVA’s facility..
Illinois EPA Photo of oily
discharge from SVA’s facility.
Complainant’s Exhibit No. 14: August 1991 DMR submitted by SVA to
V. Exhibits
Complainant anticipates using the following documents as
Exhibits during the hearing of this case. This list may not be
complete, and the numbers may change.
Complainant’ s
Exhibit No.
Complainant’ s
Complainant’ s
Complainant’ s
Complainant’ s
Complainant’ s
Complainant’ s
Complainant’ s
Complainant’ s
Complainant’ S
Complainant’ s
Complainant’ s
Complainant’ s
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
1:
2:
3:
4:
5:
6:
7:
8:
9:
10:
11:
12:
13:
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
21
Illinois EPA.
Complainant’s Exhibit No. 15: September 1991 DMR submitted by SVA
to Illinois EPA.
Complainant’s Exhibit No. 16: October 1991 DMR submitted by SVA
to Illinois EPA.
Complainant’s Exhibit No. 17: February 1992 DMR submitted by SVA
to Illinois EPA.
Complainant’s Exhibit No. 18: November 1992 DMR submitted by SVA
to Illinois EPA.
Complainant’s Exhibit No. 19: December 1992 DMR submitted by SVA
to Illinois EPA.,
Complainant’s Exhibit No. 20: May 1993 DMR submitted by SVA to
Illinois EPA.
Complainant’s Exhibit No. 21: June 1993 DMR submitted by SVA to
Illinois EPA.
Complainant’s Exhibit No. 22: April 1994 DMR submitted by SVA to
Illinois EPA.
Complainant anticipates additional documents will be
necessary at hearing based on additional discovery due from
Respondents, Respondents prehearing memorandum, testimony, and
the defenses presented at trial.
VI.
Potential Defenses
Respondents attempted to raise three affirmative defenses.
The Board struck two of them, and the only affirmative defense
which remains is:
Under the doctrines of laches 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.
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22
In addition to the affirmative defense above, the
Complainant expects the Respondents to generally argue as they
have in previous motions that Edwin L. Frederick Jr and Richard
J.
Frederick are not appropriate Respondents and should not found
liable for the violations of the Act and the Board’s regulations.
VII. The Relief Requested
A. Finding of Violations and Joint and Several Liability
The Complainant seeks a finding by the Court that the
Respondents caused or allowed each and every violation alleged in
the Second Amended Complaint, and that the Respondents are
jointly and severally liable for the civil penalties, injunctive
relief, and Attorney General’s fees and costs.
B. Civil Penalties
As provided under Section 42(a) of the Act, 415 ILCS 5/42(a)
(2002), the Complainant seeks the imposition of the maximum civil
penalties in the amount of $50,000 for each and every violation
of the Act, and an additional penalty of $10,000 for each day
during which each violation of the Act continued.
“The statutory maximum penalty is’ a natural or is the
logical benchmark from which to begin considering factors in
‘~
aggravation or mitigatiOn of the penalty amounts. This is
consistent with the discussions in the U.S. Supreme Court Tull
and Gwaltney decisions, with U.S. EPA Penalty Policy; and with
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23
Illinois decisions discussing a maximum penalty.”4°
In determining the appropriate civil penalty to be imposed
against the Respondents, Section 42(h) of the Act, 415 ILCS
5/42 (h) (2002), authorizes the Court to consider matters in
aggravation or mitigation of the penalty, including, but not
limited to, the duration and gravity of the violations, the
presence or absence of due diligence on the part of the violators
in attempting to comply with the requirements of the Act, any
economic benefit accrued by the violators because of delay in
compliance with the Act, and the necessary deterrence from future
violations that a civil penalty will serve. In the present case,
as the evidence will show, all of these factors tend to aggravate
the penalty amount to be assessed against the Respondents.
C. Attorney General’s Fees and Costs
As provided under Section 42(f)’ of the Act, 415 ILCS 5/42(f)
(2002)
,
the Attorney General seeks to tax all costs in this
action, including witness, consultant, and attorney fees against
the Respondents. The applicability of Section 42(f) has been
made clear by the Illinois Supreme Court which has held that “the
Attorney General has the authority to attempt to recover
reasonable attorney fees and costs when prevailing against a
person committing a ‘willful, knowing or repeated’ violation of
40 See Illinois EPA v. Barry, PCB 88-71, 1990 WL 271319, *48
(May 10, 1990)
;
see also People v. Gilmer, PCB No. 99-27, 2000 WL
1246533, *7 (Aug. 24, 2000)
THIS DOCUMENT IS FILED ON RECYCLED PAPER
24
the Act.”4’
The evidence presented at trial will show that the
Respondents willfully, knowingly
and
repeatedly caused or allowed
violations of the Act. Therefore, the Attorney General should be
awarded his reasonable fees and costs as proven by affidavits
which will be submitted to the Court for review and approval at
the conclusion of this case.
41 People v. NL Industries,
et al.,
152 Ill.2d 82, 102, 604
N.E.2d 349, 357 (Ill. 1992)
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25
VIII. Conclusion
WHEREFORE, Complainant respectfully requests that this Board
find that Respondents violated the Act as alleged in each count
of the Second Amended Complaint, assess a civil penalty against
Respondents, award attorneys’ fees, costs and expenses and such
other relief the Board deems appropriate.
PEOPLE OF THE STATE OF ILLINOIS,
ex
rei. LISA MADIGA.N, Attorney
General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:
MITCHELL L. COHEN
JOEL STERNSTEIN
Assistant Attorneys General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-5282/ (312) 814-6986
I:\MLC\SkokieValley\PrehearMemo.wpd
THIS DOCUMENT IS FILED ON RECYCLED PAPER
Mitchell L. C
Assistant Attorney General
26
CERTIFICATE OF SERVICE
I, MITCHELL COHEN, an Assistant Attorney General, certify
that on the
22~
day of September, 2003, I caused to be served by
First Class Mail the foregoing Complainant’s Pre-hearing
Nemorandum to the parties named on the attached service list, by
depositing same in postage prepaid envelopes with the United
States Postal Service located at 100 West Randolph Street,
Chicago, Illinois 60601.
Assistant Attorney General
I \F1LC\SkokieValley\NotofFiling.wpd
