BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
v.
)
)
FELKER PHARMACY, INC., an Illinois
)
corporation, and
ROD BENNETT
)
CONSTRUCTION, INC., an Illinois
)
corporation,
)
)
Respondents.
)
PCB No.
(Enforcement- Water)
NOTICE OF ELECTRONIC FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE
TAKE NOTICE that today, August 20,2007, 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 3515/1
et seq.)
to correct the alleged pollution.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, August 20, 2007
* * * * * PCB 2008-017 * * * * *
Date: August 20, 2007
BY:
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State of
IllinOiS~
~~/Sr
STEPNiSYL~
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2087
Electronic Filing, Received, Clerk's Office, August 20, 2007
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Felker Pharmacy, Inc.
Mr. Thomas E. Felker
President and Registered Agent
415 Blackhawk De.
Byron,
IL
61010
Rod Bennett Construction, Inc.
Mr. Roderick Bennett
President and Registered Agent
202 W. Third St.
P.O. Box 370
Pecatonica,
IL
61063
Attorney for Respondent
Mr. James E. Meason, Esq.
113 W. Main St. .
Rockton,
IL
61072
SERVICE LIST
Electronic Filing, Received, Clerk's Office, August 20, 2007
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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.
)
)
FELKER PHARMACY, INC., an Illinois
)
corporation, and ROD BENNETT
)
CONSTRUCTION, INC., an Illinois
)
corporation,
)
)
Respondents.
)
PCB No.
(Enforcement- Water)
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 Respondents, FELKER PHARMACY, INC., an Illinois
corporation, and ROD BENNETT CONSTRUCTION, 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 31
of the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/31 (2006), as to Respondent,
FELKER PHARMACY, INC. ("Felker Pharmacy") only.
2.
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, pursuant to
the terms and provisions
of Section 31(d) of the Act, 415 ILCS 5/31(d) (2006), as to Respondent
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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ROD BENNETT CONSTRUCTION, INC. ("Bennett Construction") only.
3.
The Illinois EPA is an administrative agency
of the State of Illinois, created
pursuant to Section 4
of the Act, 415 ILCS 5/4 (2006), and charged,
inter alia,
with the duty of
enforcing the Act. The Illinois EPA is further charged with the duty to abate violations of the
National Pollutant Discharge Elimination System ("NPDES") permit program under the Federal
Clean Water Act ("CWA"), 33 U.S.C. ยง 1342(b)(7) (2007).
4.
At all times relevant to this Complaint, Respondent, Felker Pharmacy was and is
an Illinois corporation in good standing.
5.
At all times relevant to this Complaint, Respondent, Bennett Construction, was
and is an Illinois corporation in good standing.
6.
At all times relevant to this Complaint, Felker Pharmacy is and was the owner
of
a commercial development known as Snyder Pharmacy.
7.
At all times relevant to this complaint, the Snyder Pharmacy was comprised
of
approximately 1.85 acres and located near the intersection of Galena Avenue and Everett Street,
Dixon, Lee County, Illinois ("Site").
8.
At all times relevant to this complaint, Bennett Construction was the general
contractor retained by Felker Pharmacy, and was responsible for the development
of the Site.
9.
Stormwater run-off from the Site flows to and through a storm sewer that runs
along Hennepin Avenue at the Site. The storm sewer discharges directly to the Rock River.
10.
On August 19,2005, approximately 3.5 inches
ofrain fell at the Site. As a result
ofthe precipitation, a large volume of runoff flowed over the Site, cut a channel through the lot
and carried gravel and fine particles, known as fines, into a storm sewer catch basin on the west
side
of the Site.
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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11.
On August 26, 2005, the Illinois EPA inspected the Site. At that time, silt fencing
had been removed at the Site with the exception of the east side. On the north and west sides of
the Site, there were no erosion controls present on soil strips. The soil strips had not been
stabilized with vegetative cover. There were no filtering devices on storm sewer inlets to protect
from the incursion of solids.
12.
On September 15,2005, there were no filtering devices on storm sewer inlets to
protect from the incursion of solids.
13.
Section 12(a)
of the Act, 415 ILCS
5/12(a)(
2006), provides as follows:
No person shall:
a.
Cause or threaten or allow the discharge
of any contaminant 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.
14.
Section 3.315 of the Act, 415 ILCS
5/3.315
(2006), 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.
15.
Felker Pharmacy, a corporation, is a "person" as that term is defined in Section
3.315
of the Act, 415 ILCS
5/3.315 (2006).
16.
Bennett Construction, a corporation, is a "person" as that term is defined in
Section 3.315
of the Act, 415 ILCS
5/3.315 (2006).
17.
Section 3.165 of the Act, 415 ILCS
5/3.165
(2006), provides the following
definition:
"CONTAMINANT" is any solid, liquid or gaseous matter, any odor or any form
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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of energy, from whatever source.
18.
Gravel and fines are "contaminants" as that term is defined in Section 3.165
of the
Act, 415 ILCS 5/3.165 (2006).
19.
Section 3.550
of the Act, 415 ILCS 5/3.550 (2006), 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.
20.
The Rock River is a "water"
of the State of Illinois as that term is defined in
Section 3.550
of the Act, 415 ILCS 5/3.550 (2006).
21.
Section 3.545
of the Act, 415 ILCS 5/3.545 (2006), 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 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
..
22.
The lack of adequate erosion control measures at the Site caused, threatened or
allowed gravel and fines erosion from construction site activities to discharge into storm sewers
at the Site which flow to the Rock River. Such gravel and fines, altered, or threatened to alter,
the physical, thermal, chemical, or radioactive properties
of the Rock River; rendered, or were
likely to render, them harmful, detrimental or injurious to wild animals, birds, fish, and other
aquatic life; or created, or were likely to create, a nuisance.
23.
From at least August 19,2005 through at least September 15,2005, on dates
better known to Respondents, Respondents utilized inadequate erosion control measures at the
Site, which caused, threatened, or allowed gravel and fines-laden stormwater runoff into storm
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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sewers atthe Site which flow to the Rock River.
24.
By their actions and omissions, Respondents caused, threatened, or allowed water
pollution, and thereby violated Section 12(a)
of the Act, 415 ILCS 5/12(a) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully
requests that the Board enter an order against Respondents, FELKER PHARMACY, INC. and
ROD BENNETT CONSTRUCTION, INC. on this Count I:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents have violated Section 12(a)
of the Act, 415 ILCS
5/12(a) (2006);
3.
Ordering the Respondents to cease and desist from any further violations
of
Section 12(a) of the Act, 415 ILCS 5/12(a) (2006);
4.
Assessing against Respondents a civil penalty
of Fifty Thousand Dollars
($50,000.00) for each and every violation
of Section 12(a) of the Act, with an additional penalty
ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering Respondents to
payall costs, pursuant to Section 42(f) of the Act, 415
ILCS 5/42(f) (2006), 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 II
CREATING A WATER POLLUTION HAZARD .
1-22.
Complainant realleges and incorporates by reference herein paragraphs 1 through
12 and paragraphs 14 through 23
of Count I as paragraphs 1through 22 of this Count II.
23.
Section 12(d)
of the Act, 415 ILCS 5/12(d) (2006), provides as follows:
5
Electronic Filing, Received, Clerk's Office, August 20, 2007
* * * * * PCB 2008-017 * * * * *
No person shall:
d.
Deposit any contaminant upon the land in such place and manner as to
create a water pollution hazard.
24.
From at least August 19, 2005 through at least September 15, 2005, on dates
better known to Respondents, Respondents caused and/or allowed the placement
of gravel and
fines at the Site without adequate erosion control structures in place and allowed gravel and
fines-laden stormwater runoff to impact storm sewers at the Site which flow to the Rock River.
25.
Respondents, by their actions alleged herein, deposited contaminants onto the
land so as to create a water pollution hazard in violation
of Section 12(d) of the Act, 415 ILCS
5/12(d) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, FELKER PHARMACY, INC. and
ROD BENNETT CONSTRUCTION, INC. on this Count II:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents have violated Section 12(d)
of the Act, 415 ILCS
5/12(d) (2006);
3. . Ordering the Respondents to cease and desist from any further violations
of
Section 12(d) of the Act, 415 ILCS 5/12(d) (2006);
4.
Assessing againstRespondents a civil penalty
of Fifty Thousand Dollars
($50,000.00) for each and every violation
of Section 12(d) of the Act, with an additional penalty
ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Ordering Respondents to pay all costs, pursuant to Section 42(f)
of the Act, 415
ILCS 5/42(f) (2006), including attorney, expert witness, and consultant fees expended by the
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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State in its pursuit of this action; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT III
FAILURE TO OBTAIN NPDES PERMIT
1-22.
Complainant realleges and incorporates by reference herein paragraphs 1 through
12 and paragraphs 14 through 23
of Count I as paragraphs 1 through 22 of this Count III.
23.
Section 12(f)
of the Act, 415 ILCS 5112(f) (2006), provides as follows:
No person shall:
*
**
(f)
Cause, threaten or allow the discharge of any contaminant into the waters
of the State, as defined herein, including but not limited to, 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
Boardor of any order adopted by the Board
with respect to the NPDES program.
24.
The United States Environmental Protection Agency 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.
25.
In pertinent part, 40 CFR 122.26(a) provides as follows:
(a)
Permit requirement.
****
(9)(i) On and after October 1, 1.994, 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
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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;
26.
In pertinent part, 40 CFR 122.26(b) provides as follows:
(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. . . .
.
27.
Section 309.102(a)
of the Illinois Pollution Control Board ("Board") Water
Pollution Regulations, 35 Ill. Adm. Code 309.102(a), provides as follows:
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.
28.
On May 1, 2005, construction activities were commenced at the Site, which
included excavating and grading, without having first obtained an NPDES stormwater general
.permit.
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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29.
On October 3,2005, the Illinois EPA issued to Snyder Drug Stores NPDES
stormwater general permit no. ILRIOD924 for commercial development known as Felker-Snyder
Pharmacy ("NPDES Permit No. ILRIOD924"). On April 12, 2006, NPDES Permit No.
ILRIOD924 was terminated by the Illinois EPA after construction activities at the Site were
completed and final stabilization was achieved.
30.
By causing or allowing over one acre and less than five acres
of land at the Site to
be disturbed without first obtaining coverage under the NPDES storm water general permit for
construction site activities prior to initiating such activities at the Site, Respondents violated
Section 12(t)
of the Act, 415 ILCS 5/12(t) (2006), and Section 309.102(a) of the Board Water
Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, FELKER PHARMACY, INC. and
\
ROD BENNETT CONSTRUCTION, INC. on this Count III:
I.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents have violated Section 12(t)
of the Act, 415 ILCS
5/12(t) (2006), and Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 309.102(a);
3.
Ordering the Respondents to cease and desist from any further violations
of
Section 12(t) of the Act, 415 ILCS 5/12(t) (2006), and Section 309.102(a) of the Board Water
Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
Assessing against Respondents pursuant to Section 42(b)(I)
of the Act, a civil
penalty
of Ten Thousand Dollars ($10,000.00) for each day of violation of Section 12(t) of the
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Electronic Filing, Received, Clerk's Office, August 20, 2007
* * * * * PCB 2008-017 * * * * *
Act and Section 309.102(a) of the Board Water Pollution Regulations;
5.
Ordering Respondents to pay all costs, pursuant to Section 42(f)
of the Act, 415
ILCS 5/42(f) (2006), 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.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN,
Attorney General
of the State of Illinois,
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
By:
Rose
Caz.~~~~~~
Environmental Bureau
Assistant Attorney General
Of Counsel:
STEPHENJ.SYLVESTER
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite 1800
.Chicago, IL 6060
Tel: (312) 814-2087
Fax: (312) 814-2347
Email: ssylvester@atg.state.il.us
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Electronic Filing, Received, Clerk's Office, August 20, 2007
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CERTIFICATE OF SERVICE
I, Stephen 1. 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 persons listed on the Notice
of Filing on August 20,2007.
BY:
Electronic Filing, Received, Clerk's Office, August 20, 2007
* * * * * PCB 2008-017 * * * * *
