BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
by LISA
MADIGAN, Attorney General
of the State of Illinois,
Complainant,
GALENA HILLSIDE HOMES,
INC., an
Illinois corporation,
Respondent.
)
)
)
)
)
)
1
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PCB No.
1
(Enforcement
-
Water)
1
1
)
NOTICE OF FILING
TO:
Galena Hillside Homes, Inc.
C/O James L. Miller, Registered Agent
402 Fourth Street
Galena, Illinois 6 1036
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today, May 24,2006, I have filed with the Office of the
Clerk of the Illinois Pollution Control Board by electronic filing the following Complaint a true
and correct copy of which is attached and hereby served upon you.
Pursuant to 35
Ill. Adm. Code 103.204(f), I am required to. state that failure to file an
answer to this Complaint within 60 days may have severe consequences. Failure to answer will
mean that all allegations in the Complaint will be taken as if admitted for purposes of this
proceeding. If you have any questions about this procedure, you should contact the hearing
officer assigned to this proceeding, the Clerk's Office or an attorney.
NOTIFICATION
YOU ARE HEREBY NOTIFIED that financing may be available through the Illinois,
Environmental Facilities Financing Act (20 ILCS 35
1511 et seq.) to correct the alleged pollution.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 24, 2006
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PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General
of the State of Illinois
BY:
Sa
/S&
STEP&N J. SYEVEST~
Assistant Attorney General
Environmental Bureau
188 West Randolph St., Suite 2001
Chicago, Illinois 60601
(3 12) 814-2087
'
Date: May 24,2006
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
v.
1
1
PCB No.
GALENA HILLSIDE HOMES,
INC., an
)
(Enforcement
-
Water)
Illinois corporation,
)
1
Respondent.
1
COMPLAINT
Complainant, People of the State of Illinois, by LISA MADIGAN, Attorney General of
the State of Illinois, on her own motion and at the request of the Illinois Environmental
Protection Agency, complains of Respondent, GALENA HILLSIDE HOMES, INC.,
an Illinois
corporation, as follows:
COUNT I
WATER POLLUTION
1.
This Count is brought on behalf of the PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General of the State of Illinois, on her own motion and at the
request of the Illinois Environmental Protection Agency (
"Illinois EPA"), pursuant to Section 3 1
of the Illinois Environmental Protection Act ("Act"), 41 5 ILCS 513 1 (2004).
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415 ILCS
514 (2004), and charged, inter alia, with the duty of
enforcing the Act. The Illinois EPA is further charged with the duty to abate violations of the
National Pollutant Discharge Elimination System (
"NPDES") permit program under the Federal
Clean Water Act (
"CWA"), 33 U.S.C.
$
1342(b)(7) (2004).
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3.
At all times relevant to this Complaint, Respondent, Galena Hillside Homes,
Inc.
("GHH"), was and is an Illinois corporation in good standing.
4.
At all times relevant to this Complaint, GHH
excavatedharvested topsoil
from a
parcel of land approximately 3.6 acres in size, which it owns, located off Posey Road in the East
112 of Section 36, Township 29 North, Range 1 East, Jo Daviess County, Illinois ("Site").
5.
Stormwater run
-off from the Site flows directly into the East Fork of the Galena
River (
"River"), which flows through the Site.
6.
On April 22,2005, there was a front
-end loader and screening equipment inside
the west gate at the Site and there was disturbed soil from soil
excavatingharvesting operations
that had been occurring in and around the western portion of the Site.
7.
Also on April 22,2005, GHHYs soil excavatingharvesting activities on the north
bank of the upstream side of a bridge near the Site reduced the height of the riverbank on the
upstream and downstream sides of the bridge, which crosses the River. The riverbank in the
area, where the soil
excavatinglharvesting was taking place, was at nearly the same elevation as
the River, while immediately downstream the riverbanks were between three
(3) and six (6) feet
higher than the River.
8.
Also on April 22,2005, there were no erosion control measures in place to
prevent the migration of disturbed soil into the River.
9.
Also on April 22,2005, there were overgrown mounds from previous soil
excavations/harvestings by GHH, and over one (1) acre of land at the Site had been disturbed.
10.
Section
12(a) of the Act, 415 ILCS 5/12(a)(2004), provides as follows:
No person shall:
a.
Cause or threaten or allow the discharge of any contaminant into the environment
in any State so as to cause or tend to cause water pollution in Illinois, either alone
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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.
1 1.
Section 3.3 15 of the Act,
41 5 ILCS 513.3 15 (2004), provides the following
definition:
"PERSON" is any individual, partnership, co-partnership, firm, company, limited
liability company, corporation, association, joint stock company, trust, estate, political
subdivision, state agency or any other legal entity, or their legal representative, agent or
assigns.
12.
Respondent GHH, a corporation, is a
"person" as that term is defined in Section
3.3 15 of the Act,
41 5 ILCS 513.3 15 (2004).
13.
Section 3.165 of the Act,
41 5 ILCS 513.165 (2004), provides the following
definition:
"CONTAMINANT" is any solid, liquid or gaseous matter, any odor or any form of
energy, from whatever source.
14.
Soil
andlor silt are "contaminants" as that term is defined in Section 3.165 of the
Act, 415 ILCS 513.165 (2004).
15.
Section 3.550 of the Act,
41 5 ILCS 513.550 (2004), contains the following
definition:
"WATERS" means all accumulations of water, surface and underground, natural and
artificial, public and private, or parts thereof, which are wholly or partially within, flow
through, or border upon this State.
16.
The East Fork of the Galena River are
"waters" of the State of Illinois as that term
is defined in Section 3.550 of the Act, 415 ILCS 513.550 (2004).
17.
Section 3.545 of the Act, 415 ILCS 513.545
(2004), provides the following
definition:
"Water Pollution" is such alteration of the physical, thermal, chemical, biological or
radioactive properties of any waters of the State, or such discharge of any contaminant
into any waters of the State, as will or is likely to create a nuisance of render such waters
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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.
18.
By failing to install adequate erosion control measures at the Site, GHH caused,
threatened
andor allowed excessive soil and/or silt erosion from its soil excavationlharvesting
activities at the Site to discharge into the East Fork of the Galena River. Such soil andor silt,
altered, or threatened to alter, the physical, thermal, chemical, or radioactive properties of the
East Fork of the Galena River; rendered, or were likely to render, the river harmful, detrimental
or injurious to wild animals, birds, fish, and other aquatic life; or created, or were likely to create,
a nuisance.
19.
From at least April 22, 2005 through at least July 2005, on dates better known to
GHH, GHH failed to utilize any erosion control measures at the Site, which caused, threatened,
or allowed soillsilt
-laden stormwater runoff. By its actions and omissions, GHH caused,
threatened, or allowed water pollution, and thereby violated Section
12(a) of the Act, 415 ILCS
5/12(a) (2004).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondent, GALENA HILLSIDE HOMES,
INC.
on this Count I:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent has violated Section
(2004);
12(a) of the Act, 415 ILCS 5/12(a)
3.
Ordering the Respondent to cease and desist from any further violations of
Section
12(a) of the Act, 41 5 ILCS
5/12(a) (2004);
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4.
Assessing against Respondent a civil penalty of Fifty Thousand Dollars
($50,000.00) for each and every violation of the Act, with an additional penalty of Ten Thousand
Dollars ($10,000.00) for each day of violation;
5.
Ordering Respondent to pay all costs, pursuant to Section
42(f) of the Act, 415
ILCS
5/42(f) (2004), including attorney, expert witness, and consultant fees expended by the
State in its pursuit of this action; and
6. Granting such other relief as the Board deems appropriate and just.
COUNT I1
CREATING A WATER POLLUTION HAZARD
1-1 7.
Complainant realleges and incorporates by reference herein paragraphs 1 through
9 and paragraphs 1 1 through 18 of Count I as paragraphs 1 through 17 of this Count 11.
18.
Section
12(d) of the Act, 41 5 ILCS 5/12(d) (2004), provides as follows:
No person shall:
d.
Deposit any contaminant upon the land in such place and manner so as to create a
water pollution hazard.
19.
From at least April 22, 2005 through at least July 2005, on dates better known to
GHH, GHH
excavatedlharvested and disturbed soil near the East Fork of the Galena River at the
Site without any erosion control structures in place and allowed sediment runoff to impact the
East Fork of the Galena River at the Site.
20.
By
excavatingharvesting and disturbing soil near the East Fork of the Galena
River at the Site without any erosion control structures in place, allowing sediment runoff to
impact the East Fork of the Galena River at the Site, Respondent GHH created a water pollution
hazard and thereby violated Section
12(d) of the Act, 415 ILCS 5/12(d) (2004).
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WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondent, GALENA HILLSIDE HOMES, INC.
on this Count
11:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
'
2.
Finding that Respondent has violated Section
12(d) of the Act, 415 ILCS 5/12(d)
(2004);
3.
Ordering the Respondent to cease and desist from any further violations of
Section
12(d) of the Act, 415 ILCS 5/12(d) (2004);
,
4.
Assessing against Respondent a civil penalty of Fifty Thousand Dollars
($50,000.00) for each and every violation of the Act, with an additional penalty of Ten Thousand
Dollars ($10,000.00) for each day of violation;
5.
Ordering Respondent to pay all costs, pursuant to Section
42(f) of the Act, 415
ILCS
5/42(f) (2004), including attorney, expert witness, and consultant fees expended by the
State in its pursuit of this action; and
6. Granting such other relief as the Board deems appropriate and just.
COUNT I11
FAILURE TO OBTAIN AN NPDES STORM WATER PERMIT
1
-
15.
Complainant realleges and incorporates by reference herein paragraphs 1 through
9 and paragraphs 1 1 through 16 of Count I as paragraphs 1 through 15 of this Count 111.
16.
Section
12(Q of the Act, 415 ILCS 5/12(f) (2004), provides, in pertinent part, as
follows:
No person shall:
*
*
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Cause, threaten or allow the discharge of any contaminant into the waters of the
State, as defined herein, including but not limited to, waters to any sewage works,
or into any well or
from any point source within the State, without an NPDES
permit for point source discharges issued by the Agency under Section
39(b) of
this Act, or in violation of any term or condition imposed by such permit, or in
violation of any NPDES permit filing requirement established under Section
39(b), or in violation of any regulations adopted by the Board or of any order
adopted by the Board with respect to the NPDES program.
. . .
17.
The federal Clean Water Act regulates the discharge of pollutants from a point
source into navigable waters and 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.
18.
The
USEPA 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 pollution prevention plan for construction activity including clearing,
grading and excavation.
19.
.
In pertinent part, 40 CFR 122.26(a) provides as follows:
(a)
Permit requirement.
*
*
*
*
(9)(i) On and after October 1, 1994, for discharges composed entirely of
storm water, that are not required by paragraph
(a)(l) of this section to
obtain a permit, operators shall be required to obtain a NPDES permit only
if:
(B)
The discharge is a storm water discharge associated with
small construction activity pursuant to paragraph
(b)(15) of
this section;
20.
In pertinent part, 40 CFR
122.26(b) provides as follows:
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(b)
Definitions.
15)
Storm water discharge associated with small construction activity means
the discharge of storm water
from:
i)
Construction activities including clearing, grading, and excavating
that result in land disturbance of 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. Small construction activity does not
include routine maintenance that is performed to maintain the
original line and grade, hydraulic capacity, or original purpose of
the facility.
. . .
I
21.
Section 309.102(a) of the Illinois Pollution Control Board ("Board") Water
Pollution Regulations, 35
Ill. Adm. Code 309.102(a), provides as follows:
I
NPDES Permit Required
a)
Except as in compliance with the provisions of the Act, Board regulations, and the
CWA, and the provisions and conditions of the NPDES permit issued to the
discharger, the discharge of any contaminant or pollutant by any person into the
waters of the State from a point source or into a well shall be unlawful.
I
22.'
On January
5, 2006, the Illinois EPA issued to GHH NPDES Permit No.
I
ILRlOE548 for Storm Water Discharges from construction site activities at the Site.
I
23.
From at least April 22,2005 until January 5,2006, GHH7s Site was not covered
under an NPDES storm water permit.
I
24.
By disturbing over one acre of land at the Site without first obtaining coverage
I
under the general NPDES storm water permit for construction site activities prior to initiating
I
soil excavatiodharvesting at the Site, GHH violated Section 12(f) of the Act, 415 ILCS 5/12(f)
I
(2004), and Section 309.lO2(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
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WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondent, GALENA HILLSIDE HOMES, INC.
on this Count
111:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent has violated Section
12(f) of the Act, 415 ILCS 5/12(f)
(2004), and Section 309.lO2(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a);
3.
Ordering the Respondent to cease and desist from any further violations of
Section
12(f) of the Act, 415 ILCS 5/12(f) (2004) and Section 309.102(a) of the Board Water
Pollution Regulations, 35
Ill. Adm. Code 309.lO2(a);
4.
Assessing against
~es~ondent,
pursuant to Section
42(b)(l) of the Act, a civil
penalty of Ten Thousand Dollars ($10,000.00) for each day of violation of Section
12(f) of the
Act and Section
309.102(a) of the Board Water Pollution Regulations;
5.
Ordering Respondent to pay all costs, pursuant to Section
42(f) of the Act, 415
ILCS
5/42(f) (2004), including attorney, expert witness, and consultant fees expended by the
State in its pursuit of this action; and
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6. Granting such other relief as the Board deems appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN,
Attorney General of the State of Illinois,
MATTHEW
J. DUNN, Chief
Environmental Enforcement1
Asbestos Litigation Division
By:
Environmental
BUG
Assistant Attorney General
Of Counsel:
STEPHEN
J. SYLVESTER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th F1.
Chicago, IL 60601
Tel: (3 12) 8
14-2087
Fax: (312) 814-2347
Email: ssylvester@atg.state.il.us
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CERTIFICATE OF SERVICE
I, Stephen J. Sylvester, an Assistant Attorney General, do certify that a true and correct
copy of the Complaint and Notice of Filing were sent by certified mail with return receipt
requested to the person listed on the Notice of Filing on May
24, 2006.
BY:
Sk /s&
STEPHEN JAYLVHSTER
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