BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ROCKFORD BLACKTOP CONSTRUCTION
CO., an Illinois corporation, and
WESTLAKE UTILITIES, INC.,
an Illinois corporation,
Respondents.
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PCB No
Cit-O\ \
) (Enforcement - Water)
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COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN,
Attorney General
of the State of Illinois, complains of the Respondents, ROCKFORD
BLACKTOP CONSTRUCTION CO., an Illinois corporation, and WESTLAKE
UTILITIES, INC., an Illinois corporation, as follows:
COUNT I
WATER POLLUTION
1.
This Complaint 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), and is an action for civil penalties.
2.
The Illinois EPA is an administrative agency established in the executive
branch
ofthe State government by Section 4 of the Act, 415 ILCS 5/4 (2006), and is
charged,
inter alia,
with the duty of enforcing the Act. The Illinois EPA is further
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
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.
ยง1342(b)(7) (2006).
3.
At all times relevant to this Complaint, Respondent Rockford Blacktop
Construction Co. ("Rockford Blacktop") was and is an Illinois corporation registered and
qualified to transact business in the State
of Illinois.
4.
At all times relevant to this Complaint, Respondent Westlake Utilities,
Inc. ("Westlake") was and is an Illinois corporation registered and qualified to transact
business in the State
of Illinois.
5.
At all times relevant to this Complaint, Westlake has owned and operated
a wastewater lagoon-type treatment plant ("WWTP"). The WWTP provides service to
the Westlake Village residential development and is located in Winnebago County,
Illinois.
6.
Upon information and belief, the WWTP was constructed in
approximately 1997 as part
of the Westlake Village residential development ("Westlake
Village"). The WWTP is situated on approximately 10 acres and consists
of a blower
house and three treatment cells, identified
as "Cell. One", "Cell Two" and "Cell Three",
which utilize an aeration process to treat sanitary waste prior to discharge to Coolidge
Creek.
7.
At all times relevant to the Complaint, Rockford Blacktop was the.
contractor responsible for performing repair work on Cell Three, which included
dewatering, removing rip-rap and trees from the Cell'sbanks, and regrading and
preparing the Cell for placement
of a synthetic membrane liner.
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8.
Upon infonnation and belief, Westlake entered into a contract with
Rockford Blacktop to perfonn the construction work
as described in paragraph 8 herein.
9.
On October 1,2006, Rockford Blacktop began construction work at the
WWTP to repair Cell Three. Rockford Blacktop completed construction activities at the
WWTP in June 2007.
10.
On October 20,2006, in response to a citizen complaint that raw sewage
was being pumped out
of a lagoon at Westlake Village, Illinois EPA inspected the
WWTP.
11.
At the time of the October 20, 2006 inspection, Rockford Blacktop was
pumping water from Cell Three through a 3-inch trash pump to a grassy area adjacent to
Coolidge Creek. Coolidge Creek is a tributary to the Pecatonica River. The discharge
appeared slightly cloudy.
12.
At the time of the October 20,2006 inspection, erosion and silt control
measures were not in place at the WWTP to prevent the migration
of sediment into
Coolidge Creek.
13.
At the time of the October 20, 2006 inspection, Illinois EPA collected a
water sample from Cell Three. Analytical testing
of the water sample revealed that it
contained a total suspended solids ("TSS") concentration
of 461 milligrams per liter
("mg/L").
14.
Section 12(a) of the Act, 415 ILCS 5/12(a) (2006), provides, in pertinent
part, as follows:
No person shall:
(a)
Cause or threaten or allow the discharge
of any contaminants into
the environment in any State so as to cause or tend to cause water
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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.
15.
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.
16.
Respondents Rockford Blacktop and Westlake are each a "person" as that
term is defined in Section 3.315
ofthe Act, 415 ILCS 5/3.315 (2006).
17.
Section 3.165 ofthe 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.
The water in Cell Three contained solids and sediments, which are
"contaminants" as that term is defined in Section 3.165
of the Act, 415 ILCS 5/3.165
(2006).
19.
Section 3.545 ofthe 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 or 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.
20.
Section 3.550
of the Act, 415 ILCS 5/3.550 (2006), provides the following
definition:
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
"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.
21.
Coolidge Creek and Pecatonica River are each "waters" as that term is
defined in Section 3.550
ofthe Act, 415 ILCS 5/3.550 (2006).
22.
By pumping water containing solids and sediments from Cell Three onto
the ground adjacent
to Coolidge Creek, and failing to install adequate erosion control
measures, Respondents caused, threatened and/or allowed sediment and solids from its
pumping and dewatering activities at the WWTP
to discharge into Coolidge Creek. Such
sediment and solids altered or threatened to alter the physical, thermal, chemical or
radioactive properties
of Coolidge Creek, or were likely to render Coolidge Creek
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 October
1,2006 to at least October 20,2006, Respondents
failed
to implement adequate erosion control measures at the WWTP, to prevent solids
and sediments from Cell Three from being discharged into Coolidge Creek.
24.
By causing, threatening, or allowing the discharge of sediment into
Coolidge Creek, which ultimately discharges to Pecatonica River, Respondents Rockford
Blacktop and Westlake caused, threatened or allowed the discharge
of a contaminant into
the environment so as
to cause or tend to cause water pollution in Illinois.
25.
By causing or tending to cause water pollution in Illinois, Respondents
Rockford Blacktop and Westlake violated Section 12(a)
ofthe Act, 415 ILCS 5/12(a)
(2006).
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an Order against the Respondents,
ROCKFORD BLACKTOP CONSTRUCTION CO., an Illinois corporation, and
WESTLAKE UTILITIES, INC., an Illinois corporation:
1.
Authorizing a hearing in the matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that the Respondents have violated Section 12(a) of the Act;
3.
Ordering the Respondents to cease and desjst from any further violations
of Section 12(a) of the Act;
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
the Respondents for each violation
of the Act, with an additional civil penalty ofTen
Thousand Dollars ($10,000.00) for each day of violation;
5.
Taxing all costs in this action, including expert witness, consultant and
attorney fees, against the Respondents; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT II
WATER POLLUTION HAZARD
1-22. Complainant realleges and incorporates by reference herein paragraphs 1
through
13 and paragraphs 15 through 23 of Count I as paragraphs 1 through 22 of this
Count
II.
23.
Section 12(d) of the Act, 415 ILCS
5/12(d)
(2006), provides, in pertinent
part,
as follows:
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
No person shall:
(d)
Deposit any contaminants upon the land in such place and
manner
so as to create a water pollution hazard.
24.
By causing or allowing sediment to be deposited on the land at the WWTP
adjacent to Coolidge Creek, without taking measures to prevent sediments from entering
the creek, Respondents Rockford Blacktop and Westlake created 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 the Respondents,
ROCKFORD BLACKTOP CONSTRUCTION CO., an Illinois corporation, and
WESTLAKE UTILITIES, INC., an Illinois corporation:
1.
Authorizing a hearing in the matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that the Respondents have violated Section 12(d) of the Act;
3.
Ordering the Respondents to cease and desist from any further violations
of Section 12(d) ofthe Act;
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
the Respondents for each violation
of the Act, with an additional civil penalty ofTen
Thousand Dollars ($10,000.00) for each day of violation;
5.
Taxing all costs in this action, including expert witness, consultant and
attorney fees, against the Respondents; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT
III
FAILURE TO OBTAIN AN NPDES STORMWATER PERMIT
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
1-21. Complainant realleges and incorporates by reference herein paragraphs 1
through 13, paragraphs
15 through 18, and paragraphs 20 through 23 of Count I, as
paragraphs 1 through 21 of this Count III.
22.
Section 12(f) of the Act, 415 ILCS 5/12(f) (2006), provides, in pertinent
,
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 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.
23.
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.
24.
The USEPA has authorized the State
of Illinois to issue NPDES permits
through the Illinois EPA in compliance with federal regulations, including stormwater
discharges regulated
by 40 CFR 122.26, which requires a person to obtain an NPDES
permit and to implement a stormwater pollution prevention plan for construction activity
including clearing, grading and excavation.
25.
In
pertinent part, 40 CFR 122.26(a) provides as follows:
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
(a)
Permit requirement.
*
*
*
(1)
Prior to October 1, 1994, discharges composed entirely of
storm water shall not be required to obtain a NPDES peJ:!llit
except:
*
**
(ii)
A discharge associated with industrial activity...
26.
In pertinent part, 40 CFR 122.26(b) provides as follows:
(b)
Definitions.
***
(14)
Storm water discharge associated with industrial activity
means....The following categories
of facilities are
considered to be engaging in "industrial activity" for
purposes
of paragraph (b)(14):
. (x)
Construction activity including clearing, grading
and excavation, except operations that result in the
disturbance
ofless than five acres of total land area.
Construction activity also includes the disturbance
of less than five acres of total land area that is a part
of a larger common plan of development or sale if
the larger common plan will ultimately disturb five
acres or more;
27.
The activities associated with repairing and installing a liner in Cell Three
at the WWTP, as described in paragraph 8
of Count I, were an "industrial activity", as
that term is defined in 40 CFR 122.26(b)(14)(x).
28.
Section 309.102(a)
ofthe 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
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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.
29.
Section 301.240
of the Illinois Pollution Control Board ("Board") Water
Pollution Regulations,
35 Ill. Adm. Code 301.240, provides the following definition:
"CWA" means the Federal Water Pollution Control Act,
as amended, (33
U.S.c. 1251 et seq., Public Law 92-500 enacted
by Congress October 18,
1972 as amended
by the "Clean Water Act", Public Law 95-217, enacted'
December 12, 1977, as amended.)
30.
On July 17, 2007, Illinois EPA issued to Westlake General NPDES Pennit
No. ILR10H658 for Stonn Water Discharges from Construction Site Activities at the
WWTP.
31.
From at least October
1, 2006, and continuing through at least October 20,
2006, on dates better known to Respondents, Respondents Rockford Blacktop and
Westlake did not have an NPDES pennit allowing the discharge ofstonnwater associated
with their construction activities at the WWTP.
32.
By causing or allowing ten (10) acres
ofland at the WWTP to be disturbed
without first obtaining coverage under the NPDES general stonn water pennit,
Respondents Rockford Blacktop and Westlake violated Section 12(f)
ofthe 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,
ROCKFORD BLACKTOP CONSTRUCTION CO., an Illinois corporation, and
WESTLAKE UTILITIES, INC., an Illinois corporation:
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
1.
Authorizing a hearing in the matter at which time the Respondents will be
required to answer the allegations herein;
2.
Findin~
that the Respondents have violated Section 12(f) of the Act and 35
Ill.
Adm. Code 309.102(a);
3.
Ordering the Respondents to cease and desist from any further violations
of Section 12(d) ofthe Act and 35
Ill.
Adm. Code 309.102(a);
4.
Assessing against the Respondents, pursuant to Section 42(b(1) of the Act,
a civil penalty
ofTen Thousand Dollars ($10,000.00) for each day of violation of Section
12(f)
of the Act, and 35
Ill.
Adm. Code 309.102(a);
5.
Taxing all costs in this action, including expert witness, consultant and
attorney fees, against the Respondents; and
6.
Granting such other relief as the Board deems appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS
ex rei.
LISA MADIGAN,
Attorney General of the
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!Asbestos
Litigation Division
BY:
OfCounsel:
VANESSA
A.
VAIL
Assistant Attorney General
Environmental Bureau
69 West Washington Street, Suite 1800
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
Chicago, Illinois 60602
(312) 814-5361
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
CERTIFICATE OF SERVICE
I, VANESSA A. VAIL, an Assistant Attorney General, do certify that I caused to
be served this 4th day of August 2008, true and correct copies of the Stipulation and
Proposal for Settlement with Westlake Utilities, Inc., Motion to Request Relief from Hearing
Requirement and Notice of Filing by certified mail with return receipt requested to the person
listed on the said Notice
of Filing, and depositing same with the United States Postal Service
located at 69 West Washington Street, Chicago, Illinois, 60602.
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
