V
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
?
RE
1.-ERK'S
CIEI
OFFIED
CE
MAR
2 8 2008
STATE OF ILLINOIS
ollubon Control Board
v.
DISTINCTIVE HOMES, LTD., an Illinois limited
liability corporation, and DISTINCTIVE
COMPANIES, LTD., an Illinois limited liability
corporation,
Respondents.
PCB
No. 08-45
(Enforcement - Water )
NOTICE OF FILING
TO: Nancy J. Tikalsky
Assistant Attorney General
Environmental Bureau
69 W. Washington
Suite 1800
Chicago, Illinois 60602
Pollution Control Board
Attn: Clerk
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, Illinois 60601-3218
PLEASE TAKE NOTICE that today, March 27, 2008,1 have filed with the Office of th e Clerk
of the Illinois Pollution Control Board Respondents' Appearance and Answer to Complaint, a true and
correct copy of which is attached and hereby served upon you.
One of the
Curtin
attorneys
?
for Respondent
.
Citt
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
BEFORE THE ILLINOIS POLLUTION CONTROL BOARIR
E
C
Eive
CLERK'S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
MAR 2 8 2008
Complainant,
Pollution
STATE OF
Control
ILLINOIS
Board
v.
PCB No. 08-45
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
(Enforcement - Water )
COMPANIES, LTD., an Illinois limited liability
)
corporation,
)
Respondents.
)
APPEARANCE
The undersigned, as attorneys, enters the appearance of Respondents, DISTINCTIVE HOMES,
LTD. and DISTINCTIVE COMPANIES, LTC.
James . Roche
J
ke'LiLiti)
ally.)
LeeAnn M. Crow
JAMES J. ROCHE & ASSOCIATES
Attorneys for Respondents
642 North Dearborn
Chicago, Illinois 60610
(312)335-0044
f:(312)335-9009
Certificate of Service
I, LeeAnn M. Crow. an attorney for Respondents, do certify that a true and correct copy of
Respondents' Appearance and Answer to Complaint were sent by regular U.S Malik) the persons
listed on the Notice of Filing on March 27, 2008.
\-:;t\
j
os_ Cuut
LeeAnn M. Crow as attorney for Respondents
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.
LERK'S OFFICE
MAR 2 8 2008
E
OF
ILLINOIS
R
e
Pollution Control Board
c
CEIVED
PCB No. 08-45
(Enforcement - Water )
RESPONDENT'S ANSWER TO COMPLAINT FOR
INJUNCTIVE RELIEF AND CIVIL PENALTIES
Respondents, DISTINCTIVE HOMES, LTD. and DISTINCTIVE COMPANIES, LTD., by and
through their attorneys, JAMES J. ROCHE & ASSOCIATES, in response to the PEOPLE OF THE
STATE OF ILLINOIS' Complaint for Injunctive Relief and Civil Penalties, state as follows:
COUNT 1
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).
ANSWER:
Respondents have insufficient information or knowledge to either admit or deny the
allegation above, and so denies same.
2.
The Illinois EPA is an agency of the State of Illinois created by the Illinois General Assembly in
Section 4 of the Act, 425 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
Elimination System ("NPDES") permit program under the Federal Clean Water Act ("C WA"),
33 U.S.C. ยง 1342(b)(7)(2006).
ANSWER:
Respondents have insufficient information or knowledge to either admit or deny the
allegation above, and so denies same.
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.
ANSWER: Admit.
4.
Distinctive owns Villas of Fountain Hills, a 38 acre residential development with 77 residential lots
located at Wold Road one block south of 179th
Street in the Village of Orland Park, Cook
County, Illinois ("Site").
ANSWER: Admit.
5.
Storm water from the Site discharges to an unnamed tributary of Marley Creek.
ANSWER: Admit.
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 of216 feet of 6" sanitary
sewer service connection and 5,260 feet of 8" sanitary sewer extensions at the Site (collectively
"sanitary sewer lines").
ANSWER: Admit.
7.
On or about August 2003, ordates 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.
ANSWER: Admit.
8.
On September 1, 2006, the Illinois EPA conducted an inspection of the Site ("September 2006
Inspection").
ANSWER: Admit.
9.
On September 8, 2006, the Illinois EPA confirmed that Respondent did not have a construction
permit for the sanitary sewers issued by the Illinois EPA.
ANSWER:
Respondents have insufficient information or knowledge to either admit or deny the
allegation above, and so denies same.
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.
ANSWER: Admit.
11.
Respondents' ownership and development of the Site are subject to the Act and the rules and
regulation 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").
ANSWER: Admit.
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 designed to
prevent water pollution of any type designated by the Board regulations, without a permit granted
by the Agency, or in violation of any conditions imposed by such permit.
ANSWER: Admit.
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.
ANSWER: Admit.
14.
Distinctive Homes, Ltd. and Distinctive Homes, Ltd. are "persons" as that term in defined in
Section 3.315 of the Act, 415 ILCS 5/3/315 (2006).
ANSWER: Admit.
15.
The sanitary sewer lines at the Site are equipment or facilities designed to prevent water pollution
by conveying house water, a contaminant to a wastewater treatment plant for treatment.
ANSWER: Admit.
16.
Section 3.545 of the Act, 415 ILCS 5/3.545 (2006), provides the following definition:
"WATER POLLUTION" is such alteration of the phy sic2.1_ 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.
ANSWER: Admit.
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 form of energy, from
whatever source.
ANSWER: Admit.
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).
ANSWER: Admit.
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.
ANSWER: Admit.
20.
The sanitary sewers, the unnamed tributary to Marley Creek and Marley 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).
ANSWER: Admit.
21.
Section 309.202(a) of the board Water Pollution Regulations, 35 III. 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).
ANSWER: Admit.
22.
Section 301.390 of the 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.
ANSWER: Admit.
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.
ANSWER: Admit.
24.
By constructing, installing and operating the sanitary sewer at the Site without a construction permit
from the Illinois EPA, Respondents, Distinctive, 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 III. Adm.
Code 309.202(a).
ANSWER:
Respondents deny each and every allegation set forth in Paragraph 24.
COUNT II
Failure To Obtain A NPDES General Storm Water Permit
1-13. Complainant real leges and incorporates by reference herein Paragraphs I through 5, 8, 11, 13
through 14, 16 through 17 and 19 through 20 of Count I as Paragraphs 1 through 13 of this Count
II.
ANSWER:
Respondents incorporate by reference herein their answers to Paragraphs 1 through 5, 8,
11, 13 through 14, 16 throughl7 and 19 through 20 of this Complaint.
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 residential development, including
the clearing of large areas of land of all vegetation and creating piles of soil on the 38-acre Site.
ANSWER: Admit.
15.
Prior to beginning the construction in August 2001, or on a date better known to Respondents,
Respondents obtain NPDES general storm water permit no. ILR106470 from the Illinois EPA for
the Site.
ANSWER: Admit.
16.
On August 31, 2001, or on a date better known to Respondents, respondents began construction
activities at the Site.
ANSWER: Admit.
17.
On April I , 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 August 2004 correspondence to the Illinois EPA, Respondent iterated their
request to terminate its NPDES general storm water permit to ILR 106470 for the site, citing its
submission of their Notice of Termination dated April 1, 2004.
ANSWER: Admit.
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.
ANSWER:
Respondents have insufficient information or knowledge to either admit or deny the
allegation above, and so denies same.
19.
On January 12,2007, the Respondents submitted to the Illinois EPA an application for an NPDES
general storm water permit for the Site.
ANSWER: Admit.
20.
In February 2007, the Illinois EPA issued to Respondents an NPDES general storm water permit
for the Site.
ANSWER: Admit.
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) ofthis 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.
ANSWER: Admit.
22.
Sediment laden storm water is a "contaminant"
as
that term is defined Section 3.165 ofthe Act,
415 ILCS 5/3.165 (2006).
ANSWER:
Respondents deny the allegation contained in Paragraph 22.
23.
The C WA 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.
ANSWER.
Respondents have insufficient information or knowledge to either admit or deny the
allegation above, and so denies same.
24.
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.
ANSWER: Admit.
25.
In pertinent part. 40 CFR 122.26(a) provides as follows:
(a)
Permit requirement.
(1)
Prior to October 1994, discharges composed entirely of storm water shall not be required
to obtain a NPDES permit except:
(ii)
A discharge associated with industrial activity;
ANSWER: Admit.
26.
In pertinent part, 40 CFR 122.26(6) 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 less 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 ifthe larger common plan will ultimately disturb five
acres or more;
ANSWER: Admit.
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 ofthe Act, Board regulations, and the CWA, and
the provisions and conditions of the NPDES permit issued to the discharger, the discharge ofany
contaminant or pollutant by any person into the waters fo the State from a point source or into a
well shall be unlawful.
ANSWER: Admit.
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(0 of the Act, 415 ILCS 5/12(0(2006), and Section
309.102(a)
of the Board Water
Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
ANSWER: Respondents deny each and every allegation contained in Paragraph 28.
AFFIRMATIVE DEFENSES
1.
The Metropolitan Water Reclamation District and the Village of Orland Hills issued the
requisite permits for the work performed at the Site.
2.
The Metropolitan Water ReclamationDistrict and the Village of Orland Hills inspected and
approved the work performed at the Site.
WHEREFORE, Respondents, DISTINCTIVE HOMES, LTD. and DISTINCTIVE
COMPANIES, LTD. pray the Board enter an orderdismissing Complainant's case with prejudice and
for such other and further relief deemed just and proper.
James J. Roche
LeeAnn M. Crow
JAMES J. ROCHE & ASSOCIATES
642 North Dearborn Street
Chicago, Illinois 60610
(312)335-0044
f (312)335-9009
Respectfully submitted,
DISTINCTIVE HOMES, LTD. and
DISTINCTIVE COMPANIES, LTD.
By:
111 Cum
One
of their attorneys
