BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
)
Complainant,
)
)
v.
)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
)
)
Respondents.
)
PCB No.
(Enforcement- NPDES)
NOTICE OF ELECTRONIC FILING
TO:
Bryan Nooner, Chairman
Distinctive Companies, Ltd.
18304 Distinctive Drive
Orland Park,
IL
60467
PLEASE TAKE NOTICE that today, February 13, 2008, 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.
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
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
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
BY:
NA
Y
J. T
Assistant Attorne General
Environmental Bureau
69
W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-8567
Date: February 13,2008
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
)
Complainant,
)
)
v.
)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
)
)
Respondents.
)
PCB No.
(Enforcement, NPDES)
COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES
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 ("Illinois EPA"), complains
of Respondents,
DISTINCTIVE HOMES, LTD. and DISTINCTIVE COMPANIES, LTD., as
follows:
COUNT I
FAILURE
TO OBTAIN A CONSTRUCTION PERMIT
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 EPA, pursuant to Section 42 of the Illinois
Environmental Protection Act ("Act"), 415 ILCS 5/42(2006).
2.
The Illinois EPA is an agency of the State of Illinois created by the Illinois
General Assembly in 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
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
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) (2006).
3.
At all times relevant to this complaint, Respondents, Distinctive Homes,
Ltd. and Distinctive Companies, Ltd. (collectively "Distinctive") have been and are
Illinois limited liability corporations in good standing and duly authorized to do business
in the State
of Illinois. Their corporate office is located at 18304 Distinctive Drive,
Orland Park, Cook County, Illinois.
4.
Distinctive owns Villas of Fountain Hills, a 38 acre residential
development with
77 residential lots located at Wolf Road one block south of 179
lh
Street
in the Village of Orland Park, Cook County, Illinois. ("Site")
5.
Storm water from the Site discharges to an unnamed tributary of Marley
Creek.
6.
From approximately October 2001 through July 2003, or on a date or dates
better known to Respondents, Respondents engaged in the construction and installation
of 216 feet of 6" sanitary sewer service connection and 5,260 feet
of 8"sanitary sewer
extensions at the Site (collectively "sanitary sewer lines").
7.
On or about August 2003, or dates better known to Respondents,
Respondents began operating 216 feet of 6" sanitary sewer service connection and 5,260
feet of 8"sanitary
sewer extensions at the Site.
8.
On September I, 2006, the Illinois EPA conducted an inspection of the
Site. ("September 2006 Inspection")
2
Electronic Filing - Received, Clerk's Office, February 13, 2008
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9.
On September 8, 2006, the Illinois EPA confirmed that Respondents did
not have a construction permit for sanitary sewers issued by the Illinois EPA.
10.
On March 2,2007, the Illinois EPA issued Respondents an "as-built"
construction permit for the construction of the sanitary sewers at the Site.
11.
Respondents' ownership
and development of the Site are subject to the
Act and the rules and regulations promulgated by the Illinois Pollution Control Board
("Board")
and the Illinois EPA. The Board's regulations for water pollution are found in
Title 35, Subtitle C, Chapter I of the Illinois Administrative Code ("Board Water
Pollution Regulations").
12.
Section 12 (b) of the Act, 415 ILCS 5/12 (b) (2006), provides, in pertinent
part, as follows:
No person shall:
***
b) Construct, install, or operate any equipment, facility,
vessel, or aircraft capable
of causing or contributing to
water pollution, or designed to prevent water pollution of
any type designated by Board regulations, without a permit
granted by the Agency, or in violation of any conditions
imposed by
such permit.
**
*
13.
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.
3
Electronic Filing - Received, Clerk's Office, February 13, 2008
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14.
Distinctive Homes, Ltd. and Distinctive Companies, Ltd. are "persons" as
that term is defined in Section 3.315 of the Act, 415 ILCS 5/3.315 (2006).
15.
The sanitary sewer lines at the Site are equipment or facilities designed to
prevent water pollution
by conveying wastewater, a contaminant, toa wastewater
treatment plant
for treatment.
16.
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
cr~ate
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.
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
of energy, from whatever source.
18.
Untreated wastewater that flows through the sanitary sewer lines is a
"contaminant"
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 ofwater, 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.
4
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
20.
The sanitary sewers, the unnamed tributary to Morley Creek and Morley
Creek are each 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 309.202
(a) of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 309.202(a), provides
as follows:
Construction Permits
Except
for treatment works or wastewater sources which have or
will have discharges
for which NPDES Permits are required, and
for which NPDES Permits have been issued by the Agency:
a)
No person shall cause or allow the construction of any new
treatment works, sewer or wastewater source or cause or
allow the modification of any existing treatment works,
sewer or wastewater source without a construction permit
issued
by the Agency, except as provided in paragraph (b).
22.
Section 301.390
ofthe Board Water Pollution Regulations, 35.Ill. Adm.
Code 301.390, provides
as follows:
"Sewer" means a stationary means of transport or stationary system
of transport, excluding natural waterways, constructed and
operated
for the purpose of collecting and transporting wastewater
or land runoff, or both.
23.
The sanitary sewer lines, which are a stationary system of transport
constructed and operated
for the purpose of transporting wastewater, are a "sewer" as that
term is defined in Section 301.390 of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 301.390.
17.
By
construct~ng,
installing and operating the sanitary sewer at the Site
without a construction permit from the Illinois EPA, Respondents, Distinctive, violated
5
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
Section 12 (b) of the Act, 415 ILCS 5/12 (b) (2006), and Section 309.202 (a) of the Board
Water Pollution Regulations, 35
Ill. Adm. Code 309.202 (a).
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF ILLINOIS,
respectfully requests
that the Board enter an Order against the Respondents,
DISTINCTIVE HOMES, LTD. and DISTINCTIVE COMPANIES, LTD.:
A.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
B.
Finding that Respondents have violated Section 12 (b) of the Act, 415
ILCS 5/12
(b) (2006), and Section 309.202 (a) of the Board Water Pollution Regulations,
35
Ill. Adm. Code 309.202 (a);
C.
Assessing against Respondents a civil penalty of fifty thousand dollars
($50,000.00)
for each and every violation of the Act and its promulgated regulations,
with an additional penalty of ten thousand dollars ($10,000.00)
for each day ofviolation;
D.
Taxing all costs in this action, including, but not limited to, attorney,
expert witness and consultant
fees, against Respondents; and
E.
Granting such other relief as the Board deems appropriate and just.
COUNT II
FAILURE
TO OBTAIN A NPDES GENERAL STORM WATER PERMIT
1,13. Complainant realleges and incorporates by reference herein paragraphs 1
through 5, 8, II, 13 through 14, 16 through 17 and 19 through 20 of Count I as
paragraphs 1 through 13 of this Count II.
14.
From approximately August 2001 through January 12, 2007, or on a date
or dates better known
to
Respondents, Respondents engaged in the construction of a
6
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
residential development, including the clearing of large areas of land of all vegetation and
creating
p~les
of soil on the 38,acre Site.
15.
Prior to beginning construction in August 2001, or
on a date better known
to Respondents, Respondents obtained NPDES general storm water permit no ILR106470
from the Illinois EPA for the Site.
16.
On August 31,2001, or on a date better known to Respondents,
Respondents began construction activities at the Site.
17.
On April 1, 2004, Respondents' submitted a written Notice of
Termination to the Illinois EPA requesting that its coverage under the NPDES general
storm water permit no. ILR106470 for the Site be terminated.
In an August 2004
correspondence to the Illinois EPA, Respondent iterated their request to terminate its
NDPES general storm water permit no. ILR106470 for
the Site, citing its submission of
their Notice ofTermination dated April 1, 2004.
18.
At the time of the September 2006 Inspection, the Site was not covered by
an NPDES general storm water permit nor was there an application pending with the
Illinois EPA for
an NPDES permit for construction activities at the Site.
19.
On January 12,2007, the Respondents submitted to the Illinois EPA an
application for an NPDES general storm water permit for the Site.
20.
In February 2007, the Illinois EPA issued to Respondents an NPDES
general storm
water permit for the Site.
7
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
21.
Section 12(f) of the Act, 415 ILCS 5/12(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, any 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 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.
22.
Sediment laden storm
water is a "contaminant" as that term is defined
Section 3.165
of the Act, 415 ILCS 5/3.165 (2006).
23.
The CWA 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.
24.
The USEPA has authorized the State of Illinois to issue NPDES permits,
through the Illinois EPA in compliance with federal regulations, including for 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.
8
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
,
25.
In
pertinent part, 40 CFR I22.26(a) provides as follows:
(a)
Permit requirement.
*
*
*
(1)
Prior to October I, 1994, discharges composed
entirely
of storm water shall not be required to obtain a
NPDES permit except:
*
*
*
(ii)
A discharge associated with industrial
activity;
26.
In
pertinent part, 40 CFR I22.26(b) provides as follows:
*
(b)
Definitions.
**
14)
Storm water discharge associated with industrial
activity means the discharge
of storm water from any
conveyance
that is used for collecting and conveying storm
water:
x)
Construction activity including clearing,
grading and excavating, except operations
that
result in disturbance of les's than five acres of total
land area. Construction activity also includes the
disturbance
of less than five acres of total land area
that is part of a larger common plan of development
or sale if the larger common plan will ultimately
disturb
five acres or more;
27.
Section 309.102
(a) of the 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
9
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
contaminant or pollutant by any person into the waters of the State
from a point source or into a well shall be unlawful.
28.
By disturbing over five acres of land at the Site without first obtaining
coverage under the NPDES general storm water permit
for construction activities prior to
clearing large areas of land of all vegetation and creating piles of soil on the 38,acre Site,
from approximately August 2004 through January 12, 2007, or
on a date or dates better
known to Respondents, Respondents violated Section
12 (f) of the Act, 415 ILCS
5/12
(f) (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 the Respondents,
DISTINCTIVE HOMES, LTD. and DISTINCTIVE COMPANIES, LTD.:
A.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
B.
Finding that Respondents have violated Section 12 (f) of the Act, 415
ILCS
5/12
(b) (2006);
C.
Assessing against the Respondents, pursuant to Section 42 (b) (1) of the
Act, 415 ILCS
5/42
(b) (l)(2006) , a civil penalty ofTen Thousand Dollars ($10,000.00)
for each day ofviolation ofSection 12 (f) of the Act and 35 Ill. Adm. Code 309.102 (a);
D.
Taxing all costs in this action, including, but not limited to, attorney,
expert witness and consultant
fees, against Respondents; and
E.
Granting such other relief as the Board deems appropriate and just.
10
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
I' •
. .
Of Counsel:
Nancy
J. Tikalsky
Assistant Attorney General
Environmental Bureau
69
W. Washington St., Suite 1800
Chicago, Illinois 60602
(312)
814,8567
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
11
Electronic Filing - Received, Clerk's Office, February 13, 2008
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CERTIFICATE OF SERVICE
I, Nancy J. Tikalsky, 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 February 13,2008.
BY:N~
Electronic Filing - Received, Clerk's Office, February 13, 2008
* * * * * PCB 2008-045 * * * * *
