•

~i

 BEFORE THE ILLINOIS

 POLLUTION CONTROL BOAR

S~L

PEOPLE OF

 THE, STATE OF ILLINOIS

 SEP27 2OO~

STATE OF ILUNOIS

Complainant,

PoUution GontrO~board

v.

 No. 05-~°

•

)

 (Enforcement

 Water)

YOUSSI REAL ESTATE

AND

 DEVELOPMENT,)

INC.,

 an Illinois Corporation,

)

Respondent.

NOTICE

 OF FILING

TO:

 See Attached Service List

PLEASE TAKE NOTICE that on September 27,

 2004,

 the People of~

the State

 of, Illinois filed with the Illinois Pollution Control

Board a Complaint,

 true and correct copies of which are attached

and hereby served upon you.

Failure to file an answer to this complaint within 60 days

may have severe conCequences.

 Failure to answer will mean that

all allegations in the complaint will be taken as if admitted.for

purposes of this proceeding.

 If you have any questions about

this procedure., you should contact the hearing officer assigned

to this proceeding,

 the Clerk’s Office, or an attorney.

 P~espectfullysubmitted,

LISA

MADIGAN.

Attorney General

•

 State

 of Illinois

BY

_________

•

JOEL

.J.

ST~RNSTEIN

Assistant Attorney General

•

 Environmental Bureau

188 W.

 Randolph St.,

 20th Floor

Chicago,

 Illinois

60601

•

 (312)

 814-6986

THIS

 FILING

 IS SUBMITTED

 ON RECYCLED

 PAPER

•

••

•

SERVICE LIST

Mr. Charles Gunnarson,

 Esq.

•

Illinois Environmental Protection Agency

1021 North Grand Avenue East

•

P.O. Box 19276

•

Springfield,

 IL 62794-9276

•

 Mr. Patrick-Hayes,

 Esq.

•

• Guye.r & Enichen

•

• •

•

26OlReid Farm ~Road

•

Rockford,

 •I.L 61114

•

•

RECE~VED

•

CLERK’S OFFICE

BEFORE

 THE. ILLINOIS POLLUTION CONTROL BOARD

 SEP 272004

PEOPLE OF THE STATE .OF.ILLINOIS

•

)

STATEOFILLINOIS

•

)

•

Pollution Control Board

Complainant,

•

‘

•

)

•

••

No.

~

•

)

•

 (Ehforcement

 Water)

YOUSSI REAL ESTATE., AND DEVELOPMENT,)•

•

.•

INC.,

 an Illinois Corporation,

‘

)

•

Respondent.

•

)•.

COMPLAINT FOR CIVIL PENALTIES

•

Complainant,’ PEOPLE OF THE STATE OF ILLINOIS,

 by LISA

MADIGAN, Attorney General of

 the• State of Illinois,

 complains •of

Respondent

 YOtJSSI REAL ESTATE AND. DEVEIr1OPMENT1

 INC.

 as follows:

•

•.

•

COUNT

I

•

NPDES PERMIT VIOLATIONS

1.

 This Complaint

 •is b±ought on behalf of the People of

the State of I1lin~i~by Lisa Madigan, Attorney General of the

State of Illinois,

 on h~rown motion and at the request of the

Illinois Environmental Protection Agency

 (“Illinois EPA” or

“Agenby”) pursuant to the terms

 and, provisions of Section 31 of

the Illinois Environmental P~oteotionActçA~ct”),.4l5ILiCS5f31

—

•

 (2002),

 and is an action to restrain violations

 of the. Act

 and.

•

 for civil penalties.

•

•.

2.

•

 The IllinoIs EPA is an administrative agency

•

 established in the executive branch of the State gàvernment by

Section

 of the Act,

 415 ILCS 5/4

 (2002), and is charged,

 inter

•

 alia,

with the duty of enforcin~the Act.

1

•

3.

 At all times relevant to thisComplaint,Re~pondent.

Youssi Real Estate and Development,

 Inc. was and is an Illinois.

corporation in good standing

•

.4.

 Respondent

 is a developer of residential homes at the

• Prairie, Meadow subdivi~ion, a

 72.. 2 acre parcel of land located at

•the corner of Dawson Lake Road and Caledonia Road in the Village

of Timberlane,

 Boone County,

 Illinois

 A roadside ditch

is

located along the west ~idë of Prairie Meadow Way within the

•subdivision.

•

5

 Prairie Meadow subdivision is being developed in

phases,

 and Respondent completed Phase

 I of the Prairie Meadow

Subdivision

 (“Phase

 I”)

 in approximately 1992

 Phase

I

 is not at

issue

 in the instant Complaint

6

 The instant Complaint concerns Phase II of the Prairie

Meadow Subdivision

 (“Phase

 II”),

 a 28 acre parcel where

 lot sizes

average

1

 3 acres each

 Respondent built Phase

 II from sometime

r

in 2003 until mid-2004,

 on dates better known to Respondent

7

 Since 2003,

 at least one stormwater retention pond was

located at the Site to allow stormwater settling prior to

discharge from Phase II

 Any overflow from the retention pond

would flow south approximately one mile to the headwaters of

Beaver Creek which is a tributary to the Kishwaukee River

2

8.

 During d.evelopment and construction activities at Phase

II frOm 2003 until mid-2004, Respondent operated~equipment which

disturbed and moved topsoil.

•

9.

 Section

 12. of the Act,

 415 ILCS 5/12

 (2002)

 provides,

in pertinent part,

 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•39(b)

 of this Act, or in

violation of any term or condition imposed by such

•

 permit, o~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.

•

10.

 Respondent i~a “person” as that term is defined at

Section 3.315 of;the Act,

 .415 ILCS5/3.3l5

 (2002).

•

11.

 The topsil at Phase ±1is a “contaminant” as that term.

is defined at Section 3.165 of the Act, 415 ‘ILCS 5/3.165

 (2002)

12.

 The stormwater retention.pond/ponds at

 Phase II is/are

“water(s)~of the Stateof Illinois,

 as that term is defined in

Section 3.550 of the

ACt,

 415 ILCS 5/3.550

 (2002)

•

‘

 13..

 The federal Clean Water’Act regulates the discharge’o,f

pollutants from a point source into navigable waters and

3

prohibits such point source: discharges without an NPDES’permit.

The United States ‘Environmental Protection Agency

 (“USEPA”)

administers the NPDES program in’each State unless the ‘USEPA has

delegated ‘authority, to do so to that State.

 The IJSEPA has

authorized the State of ‘Illinois to issue NPDES permits through

the Illinois EPA

 in, compliance with federaL regulations,

including storm water,discharges regulated by 40 CFR 122.26,

which requires a person

 to’ obtain an NPDES permit and to

implement

 •a storm water pollutio.n prevention plan for

construction activity including’clearing,,gráding and excavation.

l4~

 In pertinent part,

 40 CFR 122.26 provides as follows:

•

(a)

 Permit requirement.

•

‘

(1)

 Prior to October 1,

 1994,

 discharges composed

•

‘

 ‘entirely of storm’ wat~rChall not be required to

obtain a NPDES permit except:

‘

(ii)

 A discharge associated with industrial

activity

 (see.

 § 122.26(a) (4));

(9).(i)’

 On andafterOctob~r’1, l994~for

discharges ‘composed entirely of storm, water, that

are not required by paragraph,

(a)

(1)

 of this

section to obtain a permit, operators shall be

required to obtain a NP’DES permit only if:

‘

(B)

 The discharge is

 storm’ water discharge

associated with small construction activity

pursuant to paragraph

 (b) (15)

•.

of this

•section;

*,*

(b)

 Definitions.

(14)

 Storm water discharge associated with

industrial’ activity means the discharge, from any

conveyance’ that

 is used. for.collecting and

conveying sto±~mwater

 and that is directly related

to manufacturing, processing or raw, materials

‘

storage areas at an industrial plant.

 The. terth

does not include dischargesfrom facilities or

activities excluded from the NPDES program under

this part 122.

 For the categories of industries

identified in this’ section,

 the term includes~but

•is not limited to, storm water discharges from

industrial plant. yards;

 immediate access roadsand

rail lines used or traveled by carriers of raw

materials, manufactu~edproducts,

 waste material,

‘or by-products used or created by the facility;

•

‘material handling sites;

 refuse’ sites;

 sites used

for the’ application or disposal of process waste

waters

 (as. defined at part 401 of this chapter);

sites used for the storage

 and, maintenance of

material handling equipment;.’ sites used for

residual treatment,

 storage, or disposal;

 shipping

and receiving areas; manufacturing buildings;

stprage.a~e~s(including tank farms)

 for raw

materials,

 and intermediate and final products;

and areas where industrial activity has taken

place’in the past and significant. materials’rema±n

and are exposed to storm water.

 For ‘the purposes

of this paragraph,’material handling actiyities

• include storage, lOading and’unloading,

transportatiOn,

 or conveyance of any raw material,,

intermediate product,

 final product,

 by-product’ or

waste product.

 The term excludes areas located.on

plant lands separate from the plant’s industr~a1

activities,

 such as office buildings and

•

accompanying parking lots

 as long as the drainage’.

from the’ exOluded areas is not mixed with storm

Water drained from the above described areas.

Industrial facilities

 (including industrial

facilities th~tare federally,

 State, or

•

municipally owned or operated that meet the

‘description of the facilities listed in paragraphs

(b) (14) (i)

 through

 (xi)

 of this section)

 include

those’ facilities’designated under the provisions

‘5

•

•

 of paragraph’ (a).(1)’(y)

 of this’ section.

The

following categories of facilities are considered

•

‘

 to be engaging in “industrial activity” for

purposes of ~aragraph

 (b) (14):

‘*

.(x) Construction activity including clearing,

•

‘

grading and excavation,

 except operations

that result in the disturbance of less than

 ‘five acres of total land area.

 Construction

•

 acti~iityalso includes the disturbance of

less ,thanfive acres

 of, total land~areathat

•

is

 a part, of a larger common plan of

•

‘

development Or sale if, the larger common plan

•

 will ultimately disturb

 f,ive acres or more;

(15)

 Storm water’discharge associated with small

construction activity means the discharge of storm

water’ from:

•

‘

(I)

 Construction activities’ including clearing,

grading, and ~xcavating that result in land

di~turb.anceof equal’to or greater than one, acre

and less than five acres.

 Small construction

activity also includes the disturbance of less

than one acre of total land area that

is

 part’. of a

larger common plan of development, or sale if the

•

 larger common plan will ultimately disturb equal

to or’greater than one and less than five acres.

15.

 Sectipn 309.103’ of the Pollution Control Board

(“Board”) water pollution regulations,

 35 Ill. ‘Mm. Code 309.103,

proi.rides in peftinent part as follows:

‘

,a)

‘~

 Application Forms

‘

1)

 An applicant for a National Pollutant Discharge

elimination System

 (NPDES) permit shall’ file an

.appli~ation,in,accordance with Section 309.223

•

“

 herèof~, on forms provided by the Illinois

‘Environmental Protection Agency

 (Agency).

 Such

forms

 shall comprise the NPDES application forms

• promulgated by the LJ.’~. Environmental Protection

•

 Agency fOr the type of discharge forwhich an

NPDES Permit

 is being.sought and suqh additional,

•

 information as,the Agency may reasonably require

•

 in order to determine that the discharge. or

•

 proposed discharge will,be in compliance with

•

 applicable state and ‘federal requirements.

‘

16

 Prior to the commencement

 of, its Phase

 II construction

activities sometime in 2003 ‘or a date better known to Respondent,

Respondent

 failed to obtain an NPDES stormwater discharge permit

•

 for its Phase

 II construction activitie~.

‘

“,

‘

.‘

‘:

17

 Respondent did not obtain a stormwater discharge permit

for its Phase, II construction activities until June 24,

 2003.

18

 By failing to obtain an NPDES stormwater permit

•

 application form for its Phase II conthtruction activities prior’

to June 24,

 2003,

 Respondent violated of Section 309 103 of the

Board water pollution regulations and thereby also violated

Section 12(f)

 of the Act

WHEREFORE,

 Compi~ainant,PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests’ that~the Board enter’ an order against

Respondent YOUSSI REAL ESTATE AND DEVELOPMENT,

INC

 for the

following relief

1

 Authorize a hearing in this matter at which time

Respondent will be required to answer the allegations herein,

2

 Find that Respondent has violated Section 309 103 of

the Board’s water pollution regulations,

 35 Ill

Adm

 Code

309

 103, and Section 12(f)

 of the Act,

 415 ILCS 5/12(f)

 (2002),

7

OF COUNSEL:’

‘

JOEL J. STERNSTEIN

“

Assistant Attorney General

Environmental Bureau

‘

188. West .Rand~1ph,

20th

 Floor

‘

•Chicago,

 IL 60601

312-814-6986

.‘

\Erwironinental

~Enforcement\JOEL\Case

Documents\Youssi\com~1aint~fixia1

.wpd

•

••

 ‘3.

•

 Order Respondent to ~eaCe and desist from any further

violations of Section 309 103 of the Board’s water pollution

•

 regulations and Section 12(f)

 of the Act;

•

4.

‘

 As~es.singagainst Respondent a civil penalty of ten

thousand dollars

 ($10,000.00)

 fOr each day during which each

violation of Section 12(f)

 of the Act and the ~egülations

promulgated thereunder occurred and continued,

5.

 Order Respondent to pa~iall

 costs’; pursuant to

Sub~eqt~on

 42 (f)

 of the Act,

 415 ILCS 5/42 (f) (2002)

 including

attorney,

 expert; witness and coneultant

 fees expended by the

State

 in its pursuit of this action, and

6.

 Grant’ such other relief as the,.Board deems appropriate

and :ust

PEOPLE OF THE

 STATE. OF ILLINOIS,.

ex

 i-el.’ LISA MADIGAN,.

•

• Attorney General: of the

•

• Stateof Illinois

•

 MATTHEW J.

 DUNN,’

Chief

‘

Environmental Enforcement/Asbestos

(-L~igationDi~ion

‘

BY

RdI~±~CAZE~_~f

Environme~i~Eu,re~~

Assistant At,to±~ney.

Gë’ne~~a~’

8

CERTIFICATE

 OF SERVICE

‘

I, JOEL J.

 STERNSTEIN,. an Assistant Attorney Gen~ral,

certify that on the

 27th

 day of September 200,4,

 I caused

 to’ be

served by Certified Mail the foregoing Complaint 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.

JOEL J. STERNSTEIN