BEFORE THE ILLINOIS POLLUTION CONTROL
iffff
v.
Respondents.
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
No. 007-
(Enforcement-Water)
)
)
.
)
)
)
)
)
)
ADVANTAGE NATIONAL BANCORP, INC., an )
Illinois corporation and VACALA
)
CONSTRUCTION, INC., an Illinois corporation, )
)
)
NOTICE
OF FILING
TO:
See attached service list
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have electronically filed with the Office of
the Clerk of the Pollution Control Board the following Complaint, a copy of which is
attached and hereby served on you.
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.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By:
< /(
tZ--v~.P\
~ ~
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69
W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-0660
Electronic Filing - Received, Clerk's Office, May 28, 2008
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SERVICE LIST
John Reagan
Wintrust Financial Corporation.
194981. Johns Ave.
Highland Park, Illinois 60035
Vacala Construction c/o John Regan
Wintrust Financial Corporation
194981. Johns Ave.
Highland Park, Illinois 60035
Electronic Filing - Received, Clerk's Office, May 28, 2008
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.
J
,/'
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
PEOPLE OF
THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
No. 08-
(Enforcement-Water)
)
)
)
)
)
)
)
)
ADVANTAGE NATIONAL BANCORP, INC., an )
Illinois corporation and VACALA
)
CONSTRUCTION, INC., an Illinois corporation,
)
)
)
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General
of the State of Illinois, complains of Respondents, ADVANTAGE NATIONAL
BANCORP, INC., and VACALA CONSTRUCTION, INC., 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 the terms
and provisions
of Section 31 of the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/31 (2006).
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2.
The Illinois EPA is an administrative agency ofthe State of Illinois, created
pursuant to Section 4
of the Act, 415 ILCS 5/4 (2006), and is charged
inter alia,
with the duty of
enforcing the Act.
3.
At all times relevant to this Complaint, Respondent ADVANTAGE NATIONAL
BANCORP, INC., a subsidiary
of WINTRUST FINANCIAL CORPORATION ("Advantage"),
was an Illinois corporation in good standing.
4.
At all times relevant to this Complaint, Respondent VACALA
CONSTRUCTION, INC. ("Vacala") was an Illinois corporation in good standing.
5.
Atall times relevant to the Complaint, Respondent Advantage owned a 1.84 acre
parcel
of land located at 165 West Lake Street, Bloomingdale, DuPage County, Illinois ("Site").
6.
Prior to November 1, 2006, or a date better known to Respondents, Advantage
retained Vacala to construct a branch bank facility
at the Site.
7.
Prior to November 6,2007, or a date better known to Respondents, Respondent
Vacala conducted construction activities on the Site.
8.
Storm water runoff from the Site flows into Spring Creek.
9.
On November 1,2006, the Illinois EPA inspected the Site in response to a citizen
complaint
of excessive mud being tracked onto Lake Street from the Site.
10.
At this time, silt fencing was not properly anchored along the southern edge of the
Site. There were no erosion control measures in place along the southeast edge
of the property
and along the edges
of the construction site entrance to prevent the migration of disturbed soil
and debris into Spring Creek.
11.
On March 22, 2007, the Illinois EPA again inspected the Site.
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. ,
12..
At this time, silt fencing was not installed properly along the southern edge of the
Site.
It was improperly anchored, or had fallen down. Additionally, storm sewer inlets on the
property had no erosion control measures in place.
13.
On April 24, 2007, the Illinois EPA again inspected the Site.
14.
At this time, silt fencing was not installed along the eastern side of the Site. Silt
fencing along the southern edge
ofthe Site was not properly maintained. It was improperly
anchored, or had fallen down. Additionally, storm sewer inlets on the property had no erosion
control measures in place.
15.
On November 6,2007, Respondent Vacala submitted to the Illinois EPA
photographs
of the Site and documentation, including invoices for purchase of silt fencing and
street sweeping. The photographs indicated that construction and landscaping activities had been
co~pleted
and sufficient erosion control measures were in place at the Site.
16.
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.
17.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006), provides, as follows:
"PERSON" is an individual, partnership, co-partnership, firm,
company, limited liability company, corporation, association, joint
stock company, trust, political subdivision, state agency, or any
other legal entity, or their legal representative, agent or assigns.
18.
Respondent Advantage, a corporation, is a "person" as that term is defined in the
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Act.
19.
Respondent Vaca1a, a corporation, is a "person" as that term is defined in the Act.
20.
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.
21.
Soil and debris from construction activities at the Site are "contaminants" as that
term
is defined in Section 3.165 of the Act, 415 ILCS 5/3.165 (2006).
22.
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.
23.
Spring Creek is a "water[s]" of the State of Illinois as that term is defined in
Section 3.550
of the Act, 415 ILCS 5/3.550 (2006).
24.
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 'orother aquatic life.
25.
From
at least November 1,2006 to November 6,2007, or on dates better known
to Respondents, Respondents Advantage and Vacala failed
to install adequate erosion control
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. measures at the Site, thereby causing, threatening or allowing soil and/or debris from
construction activities at the Site to discharge into Spring Creek, the receiving waters
of the Site.
26.
The discharge
of soil and/or debris from construction activities at the Site into
Spring Creek has caused
or tended to cause water pollution, in that such discharges have likely
rendered the waters
of the State 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, ,and have likely created a
nUIsance.
27.
By causing or allowing the discharge of contaminants in such a manner as to
cause
or tend to cause water pollution in the waters of the State, Respondents Advantage and
Vacala have 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, ADVANTAGE NATIONAL
BANCORP, INC., and VACALA CONSTRUCTION, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondents will be required to
answer the allegations herein;
2.
Finding that Respondents have violated Section 12(a) of the Act;
3.
Ordering Respondents to cease and desist from any further violations of Section
12(a)
of the Act;
4.
Assessing against Respondents a civil penalty of Fifty Thousand Dollars
($50,000.00) for each violation of the Act, with an additional penalty ofTen Thousand Dollars
($10,000.00) for each day
of violation;
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5.
Ordering Respondents to pay all costs, pursuant to Section 42(f) of the Act,
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
1-25. Complainant realleges and incorporates by reference herein paragraphs 1 through
15 and paragraphs 17 through 26 of Count I as paragraphs 1 through 25 of this Count II.
26.
Section 12(d) of the Act, 415 ILCS 5/12(d) (2006), 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.
27.
From at least November 1,2006 through at least November 6,2007, or on dates
better known
to Respondents, Respondents Advantage and Vacala graded ground on the Site
during construction activities without providing adequate erosion control devices to prevent
runoff
of soil and debris-laden storm water to Spring Creek.
28.
During the April 24, 2007 inspection
ofthe Site by Illinois EPA, Respondents
Advantage and Vacala had stockpiled soil on the Site immediately adjacent to a storm
sew~r.
Soil had been stockpiled in such a manner that a rain event would have caused the runoff of soil
and debris-laden storm water into the storm sewer.
29.
By depositing contaminants upon the land in such place and manner so
as to
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create a water pollution hazard, Respondents Advantage and Vaca1a violated 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, ADVANTAGE NATIONAL
BANCORP, INC., and VACALA CONSTRUCTION, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondents will be required to
answer the allegations herein;
2.
Finding that Respondents have violated Section 12(d) ofthe Act;
3.
Ordering Respondents to cease and desist from any further violations of Section
12(d)
of the Act;
4.
Assessing against Respondents a civil penalty of Fifty Thousand Dollars
($50,000.00) for each violation
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,
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
III
FAILURE TO COMPLY WITH NPDES PERMIT
1-22. Complainant realleges and incorporates by reference herein paragraphs 1 through
15 and paragraphs
17 through 23 Count I as paragraphs 1 through 22 of this Count III.
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23.
Section 12(f) of the Act, 415 ILCS
5/12(f)
(2006), provides in relevant 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
pennit for point source discharges issued by the Agency under Section
39(b)
of this Act, or in violation of any tenn or condition imposed by such pennit,
or in violation of any NPDES pennit 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.
24.
Pursuant to authority granted in Sections
13 and 27 of the Act, 415 ILCS
5/13
and
5/27 (2006), the Illinois Pollution Control Board ("Board") has promulgated rules and
regulations to control water pollution in Illinois, codified at 35 Ill. Adm. Code Subtitle C,
Chapter I ("Board Water Pollution Regulations").
25.
Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a), provides, as follows:
NPDES
Pennit 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
pennit 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.
26.
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
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pennit. The United States Environmental Protection Agency ("US EPA") administers the
NPDES program in each State unless the US EPA has delegated authority to do so to that State.
27.
The US EPA has authorized the State
of Illinois to issue NPDES pennits through
the Illinois EPA in compliance with federal regulations, including stonn water discharges
regulated by 40 CFR § 122.26, which requires a person to obtain an NPDES pennit and to
implement a stonn water pollution prevention plan for construction activity including clearing,
grading and excavation.
28.
40 C.F.R § 122.26(a) provides, in pertinent part, as follows:
(a)
Pennit requirement.
(1)
Prior to October
1, 1994, discharges composed entirely of
stonn water shall not be required to obtain a NPDES pennit
except:
*
*
*
(v) A discharge which the Director, or in States with
approved NPDES programs, either the Director or
the EPA Regional Administrator, detennines to
contribute to a violation
of a water quality standard
or is a significant contributor
of pollutants to waters
of the United States.
29.
40 C.F.R. § 122.26(b)(15)(i) provides, in pertinent part, as follows:
(15) Stonn water discharge associated with small construction activity means the
discharge
of stonn 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
tot~lland
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.
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30.
From May 4,2006 to July 27,2007, the Site was covered by NPDES general
permit numbered ILR10F300 authorizing storm water discharges from the Site.
31.
Part VI.A ofNPDES Permit No; ILR10F300, provides, in relevant part, as
follows:
Part VI.
Standard Permit Conditions
A.
Duty to Comply
The permittee must comply with all conditions
of this permit. Any
permit noncompliance constitutes a violation
of Illinois
Environmental Protection Act and the CWA and is grounds for
enforcement action
...
32.
Part IV.DA ofNPDES Permit No. ILR10F300, provides, in relevant part, as
follows:
Part IV. Special Conditions, Management Practices, and Other Non-Numeric
Limitations
.
*
D.
Contents of Plan
*
4.
Inspections
*
*
*
*
Qualified personnel (provided by the permittee) shall
inspect disturbed areas of the construction site that have not
been finally stabilized, structural control measures, and
locations where vehicles enter
or exit the site at least once
every seven calendar days and within 24 hours of the end
of a storm that is 0.5 inches or greater or equivalent
snowfall.
33.
Part III.DA(c)
ofNPDES Permit No. ILR10F300, provides as follows:
4 (c). A report summarizing the scope
of the inspection, name(s) and
qualifications
of personnel making the inspection, the date(s) of the inspection,
major observations relating to the implementation
ofthe storm water pollution
prevention plan, and actions taken in accordance with paragraph b above shall be
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made and retained as part of the storm water pollution prevention plan for at least
three years from the date that the permit coverage expires or is terminated.
34.
On July 16, 2007, the Illinois EPA received from Respondents Advantage and
Vacala a Notice
of Termination of coverage under NPDES No. ILRI0F300. The Notice of
Termination stated that construction activities on the Site had been completed.
35.
On July 27,2007, the Illinois EPA terminated NPDES Permit No. ILRI0F300.
36.
The inspection requirement as described
by Part IV.D.4 of the NPDES Permit
began on May
4,2006 and ended on July 27,2007.
37.
Up to and including the time
of the November 1, 2006 inspection of the Site by
the Illinois EPA, Respondents were required to have, at a minimum, 24 inspection reports
pursuant to Part IV.D.4
of the NPDES Permit as ofNovember 1, 2006. During the November 1,
2006 inspection of the site, neither Advantage nor Vacala made the reports available to the
Illinois EPA inspector.
38.
Up to and including the time
ofthe March 22,2007 inspection of the Site by the
Illinois EPA, Respondents were required to have, at a minimum,
45 inspection reports pursuant
to Part IV.D.4 of the NPDES Permit as of March 22,2007: During the March 22,2007
inspection
of the site, neither Advantage nor Vacala made the reports available to the Illinois
EPA inspector.
39.
Part IV.B.1
ofNPDES Permit No. ILR10F300 provides, in relevant part, as
follows:
IV.
Storm Water Pollution Prevention Plans
*
*
*
(B) Signature, Plan Review and Notification
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(1) The plan shall be signed in accordance with Part VI.G
(Signatory Requirements), and be retained on-site at the facility
which generates the storm water discharge in accordance with Part
VI.E (Duty to Provide Information)
ofthis permit.
40.
Part VI.E of the NPDES Permit No. ILR10F300 provides, in part, as follows:
(E) Duty to Provide Information.
[...]Upon request, the permittee shall also furnish to the Agency or
local agency approving sediment and erosion plans, grading plans,
or storm water management plans...
41.
During the November
1,2006 inspection of the Site by Illinois EPA, a
representative
of Vacala was present at the Site. The Illinois EPA inspector requested a copy of
the complete Storm Water Pollution Prevention Plan ("SWPPP"). Neither Advantage nor Vacala
made the SWPPP available to the Illinois EPA inspector at the time
of the inspection. As
required under Part IV.B.1 and VI.E of the NPDES Permit, Respondents were required to retain
the SWPPP on Site and make it available to the Illinois EPA upon request.
42.
Part IV(d)(4)(d)
ofNPDES Permit No. ILR10F300 provides as follows:
(d) The permittee shall complete and submit within 5 days an "Incident
of
Noncompliance" (ION) report for any violation of the storm water
pollution prevention plan observed during an inspection conducted,
including those not required
by the Plan. Submission shall be on forms
provided by the Agency and include specific information on the cause of
noncompliance, actions which were taken to prevent further causes of
noncompliance, and a statement detailing any environmental impact which
may have resulted from the noncompliance.
43.
Respondents Advantage and Vacala failed to submit ION reports to the Illinois
EPA within five days
of violations of the SWPPP, including inadequate and/or missing erosion
control devices observed during inspections
of the Site.
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44.
By failing to make available inspection reports and a complete copy of the
SWPPP on Site, and by failing to timely submit ION reports to the Illinois EPA for violations of
the SWPPP, RespondentsAdvantage and Vacala violated Parts IV(D)(4) and 4(c), IV(B)(I) and
(d)(4)(d) and VI(E)
ofNPDES general permit No. ILRI0F300.
45.
By violating the terms and conditions ofthe NPDES general permit covering the
Site, Respondents Advantage and Vacala violated Section 309.102(a) of35 Ill. Adm. Code, and
thereby also violated Section 12(f)
of the Act, 415 ILCS 5/12(f) (2006).
,-
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, ADVANTAGE NATIONAL
BANCORP, INC., and VACALA CONSTRUCTION, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondents will be required to
answer the allegations herein;
2.
Finding that Respondents have violated Section 12(f) ofthe Act and Section
309.102(a)
of35 Ill. Adm. Code;
3.
Ordering Respondents to cease and desist from any further violations of Section
12(f)
of the Act and Section 309. 102(a) of35 Ill. Adm. Code;
4.
Assessing against Respondents a civil penalty ofTen Thousand Dollars
($10,000.00) for
e'!-ch day of violation of Section 12(f) of the Act and Section 309.102(a) of35
Ill. Adm. Code;
5.
Ordering Respondents to pay all costs, pursuant to Section 42(f) ofthe Act,
including attorney, expert witness, and consultant fees expended
by the State in 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,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!Asbestos Litigation Division
OF COUNSEL
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69 W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-0608
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CERTIFICATE OF SERVICE
I, VANESSA M. CORDONNIER, an Assistant Attorney General, do certify that I
caused to be mailed this'Uday of May, 2008, the foregoing Complaint and NotIce of
Filing upon the person listed on said notice, by certified mail.
~~~~
VANESSA M. CORDONNIER .
Assistant Attorney General
Environmental Bureau
69 West Washington, 18
th
Floor
Chicago, IL 60602
312-814-0608
Electronic Filing - Received, Clerk's Office, May 28, 2008
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