BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of the State of Illinois,
PCB No. 09-
Complainant,
(Enforcement - Water)
vs.
MONTALBANO BUILDERS, INC.,
an Illinois corporation,
Respondent.
NOTICE OF FILING
TO:
Glenn C. Sechen
Attorney at Law
Schain Burney Ross & Citron, Ltd.
222 North LaSalle Street, Suite 1910
Chicago, Illinois 60601-1102
Clerk
Illinois pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Ste. 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office
of the Clerk of the Illinois Pollution Control Board a Complaint,
Notice of Filing, and a Certificate of Service on behalf of the
People of the State of Illinois, a copy of which is attached and
herewith served upon you.
Section 103.204(f) of the Pollution Control Board Procedural
Rules, 35 Ill. Adm. Code 103.204(f) provides: "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,
Electronic Filing - Received, Clerk's Office, November 6, 2008
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you should contact the hearing officer assigned to this
proceeding, the Clerk's Office or an attorney."
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
DATE: November 6, 2008
BY:
ZEMEHERET
1s~~J4,"~~
BEREKET-AB
__
Assistant Attorney General
Environmental Bureau
69 W. Washington St., 18
th
Flr.
Chicago, IL 60602
(312) 814-3816
THIS FILING IS SUBMITTED ON RECYCLED PAPER
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Electronic Filing - Received, Clerk's Office, November 6, 2008
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
ex rei.
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
Complainant,
)
)
v.
)
)
MONTALBANO BUILDERS, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
No. PCB No. 09-
(Enforcement - Water)
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
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 Respondent, MONTALBANO BUILDERS,
INC., an Illinois corporation, as follows:
COUNT I
CAUSE, THREATEN OR ALLOW WATER POLLUTION
1.
This Complaint is brought on behalf of the PEOPLE OF THE STATE OF
ILLINOIS
ex rei.
LISA MADIGAN, Attorney General of the State ofIllinois, 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).
2.
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
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National Pollutant Discharge Elimination System ("NPDES") Permit Program under the Federal
Clean Water Act ("CWA"),
33 U.S.C. ยง1342(b)(7).
3.
At all times relevant to the Complaint, Respondent, Montalbano Builders, Inc.,
("Montalbano"), is an Illinois corporation in good standing.
4.
Montalbano is engaged in the development of a 393 lot residential subdivision
with single family homes known as the Huntington Ridge subdivision located on the southwest
comer
of Harvard Hills and Crowley Roads in Harvard, McHenry County, Illinois ("Site").
5.
On June 5, 2006, Montalbano submitted to the Illinois EPA a notice of intent for
coverage under the NPDES stormwater permit for the Site. The Site is
193 acres in size and the
receiving stream for stormwater runoff from the Site is known as Mokeler Creek. Adjacent to the
Site there is a wetland flood plain which discharges in Mokeler Creek.
6.
On July 6, 2006, the Illinois EPA granted Montalbano coverage under the NPDES
stormwater permit for stormwater associated with construction activity.
7.
On April 17,2007, the McHenry County Soil and Water Conservation District
("MCSWCD") inspected the Site to determine the effectiveness
of erosion and sediment control
measures in preventing water pollution. During the inspection MCSWCD observed that
unstabilized and inadequate erosion controls over portions
of the Site had allowed silt-laden
runoff to threaten wetland area
just offsite the development.
8.
The MCSWCD also noted a portable diesel fuel tank located at the Site which had
no secondary spill containment and evidence
of spilled fuel was found on the ground near the
tank.
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9.
On May 9, 2007, the Illinois EPA conducted a Stormwater Construction Site
Inspection to review the erosion control measures employed at the Site. The Illinois
EPA's
inspection was prompted by reports received from the MCSWCD.
10.
During the May 9, 2007, Illinois EPA inspection, the inspector observed that
disturbed areas where no construction activity had been occurring for over three weeks did not
have temporary stabilization in place.
11.
The inspector also observed evidence of sediments leaving the Site and entering
the adjacent wetland whose water eventually discharges into Mokeler Creek. Some silt fences
were installed in low-lying areas
of the Site and were partially under water accumulated in those
areas.
12.
The inspector also observed that the final stormwater detention basin was not
stabilized and sediments were observed in the final manhole prior to the discharge point.
13.
The Illinois EPA inspector also observed that the diesel fuel storage tank found by
the MCSWCD during its April 17, 2007 inspection, was not properly protected with dykes,
curbing or some other form
of containment for spills. No spill kits were noted and storm sewer
inlets were not designed to contain fuel spills.
14.
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 contaminants 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.
15.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006), provides as follows:
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"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.
Montalbano, 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 as follows:
"CONTAMINANT" is any solid, liquid, or gaseous matter, any odor, or
any form
of energy, from whatever source.
18.
Silt laden runoff which entered the adjacent wetland and eventually discharged
into Mokeler Creek is a "contaminant," as that term is defined by Section 3.165
of the Act.
19.
Section 3.545 ofthe Act, 415 ILCS 5/3.545 (2006), provides as follows:
"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
likely to create a nuisance or render such waters harmful or detrimental or
injurious to public health, safety, or welfare, or domestic, commercial,
industrial, agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish, or other aquatic life.
20.
The silt-laden runoff from the Site that flowed into Mokeler Creek
constitutes "water pollution," as that term is defined by Section 3.545
of the Act, 415
ILCS 5/3.545 (2006).
21.
Section 3.550
of the Act, 415 ILCS 5/3.550 (2006), provides as follows:
"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 the State.
22.
The adjacent wetland and Mokeler Creek into which the wetland discharges to are
"waters," as that term is defined in Section 3.550
of the Act.
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23.
By allowing disturbed soils to remain unstabilized and without adequate erosion
control protection, Respondent caused, threatened or allowed the discharge
of a contaminant, silt-
laden runoff, into the environment.
24.
By causing, threatening or allowing the discharge
of silt-laden runoff from the
Site, "contaminants," to discharge into the adjacent wetland and eventually into Mokeler Creek, a
water
of the State, Respondent caused, threatened or allowed water pollution in Illinois, in
violation of Section l2(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 in favor
of Complainant and against Respondent with
respect to this Count
I:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section l2(a) of the Act, 415 ILCS
5/12(a)(2006);
3.
Ordering Respondent to cease and desist from any further violations of Section
12(a)
of the Act, 415 ILCS 5/12(a)(2006);
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
Respondent for each violation
of Section l2(a) of the Act, 415 ILCS 5/12(a) (2006), and an
additional civil
pen~lty
ofTen Thousand Dollars ($10,000.00) per day for each day during which
Respondent continues to be in violation
of Section 12(a) of the Act;
5.
Ordering Respondent to pay all costs including attorney, expert witness and
consultant fees expended by the State in its pursuit
of this action; and
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6.
Granting such other relief as the Board deems appropriate and just.
COUNT II
CREATING A WATER POLLUTION HAZARD
1-13. Complainant realleges and incorporates by reference herein paragraphs 1 through
13 of Count I as paragraphs 1 through 13 of this Count II.
14.
Section 12(d) of the Act, 415 ILCS 5/12(d) (2006), provides as follows:
No person shall:
*
*
*
*
(d)
Deposit any contaminants upon the land in such place and manner
so as to create a water pollution hazard.
15.
By allowing disturbed soils and soil stockpiles with inadequate erosion controls to
remain adjacent to wetland areas, thus creating a water pollution hazard, Montalbano violated
Section
l2(d) ofthe Act, 415 ILCS 5/12(d) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully'
requests the Board enter an order in favor
of Complainant and against Respondent with respect to
this Count
II:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section l2(d) of the Act, 415 ILCS 5/l2(d)
(2006);
3.
Ordering Respondent to cease and desist from any further violations of Section
12(d)
of the Act, 415 ILCS 5/12(d) (2006);
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4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
Respondent for each violation
of Section 12(d) of the Act, 415 ILCS 5/12(d) (2006), and an
additional penalty
ofTen Thousand Dollars ($10,000.00) for each day during which Respondent
continues to be in violation
of Section 12(d) of the Act;
5.
Ordering Respondent to pay all costs including attorney, expert witnesses 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 THE TERMS
AND CONDITIONS OF THE NPDES PERMIT
1-13. Complainant realleges and incorporates by reference herein paragraphs 1 through
13 of Count I as paragraphs 1 through 13 of this Count III.
14.
Section 12(t)
of the Act, 415 ILCS 5/12(t) (2006), provides as follows:
No person shall:
*
*
*
*
(t)
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.
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15.
Section 309.102(a) of the Illinois Pollution Control Board Water Pollution
regulations ("Board Water Pollution Regulations"),
35 Ill. Adm. Code 309.102(a), provides as
follows:
a.
Except as in compliance with the provisions of the Act, Board
regulations and the CW
A, 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.
16.
Montalbano's General NPDES Permit for StormWater Discharges from
Construction Site Activities No. ILRI0, Part IV. D.2(a) provides in pertinent part as follows:
"
... stabilization measures shall be initiated as soon as practicable in
portions
of the site where construction activities have temporarily or
permanently ceased, but in no case more than
14 days after the
construction activity in that portion
of the site has temporarily or
permanently ceased."
17
The Illinois EPA inspector observed that a large part of the site remained dormant
for more than
21 days and had not been stabilized within 14 days as required by NPDES Permit
No. ILRI0 Part IV.D.2(a).
18.
The discharge of silt-laden runoff from the Site into the adjacent wetland and
eventually into Mokeler Creek is a violation
of Respondent's general NPDES stormwater permit
and is therefore a violation
of Section 309. 102(a) of the Board Water Pollution Regulations, 35
Ill. Adm. Code 309.102(a).
19.
By failing to maintain adequate stormwater pollution prevention measures as
called for by its coverage under the general NPDES stormwater permit at its construction Site,
Respondent also violated Section 12(f)
of the Act, 415 ILCS 5/12(f) (2006).
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WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board to enter an order in favor
of Complainant and against Respondent with respect
to this Count
III:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
')
Finding that Respondent has violated Section 12(t) of the Act, 415 ILCS 5/12(t)
(2006), Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a), and conditions
of its NPDES permit;
3.
Ordering Respondent to cease and desist from further violations of Section 12(t)
ofthe Act, 415 ILCS 5/12(t) (2006), Section 309.102(a) of the Board Water Pollution
Regulations, 35 Ill. Adm. Code 309.102(a), and NPDES permit conditions;
4.
Assessing a civil penalty of Ten Thousand Dollars ($10,000.00) per day against
Respondent for each day
of violation 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);
5.
Ordering Respondent to pay all costs inciudingattomey, expert witness and
consultant fees expended by the State in its 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,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW
1. DUNN, Chief
Environmental Enforcement!
As~ation
Division
~
.By:
~v'1.
ROSEMARIE
CAZEAU~
~
-----'
Environmental Bureau North
Assistant Attorney General
OfCounsel:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-3816
(312) 814-2347 - fax
lIoagfilelCommonlEnvironmental EnforcementlZ BEREKET-ABIMontalbano Verified Complaint 7-15-08.wpd
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CERTIFICATE OF SERVICE
I,
ZEMEHERET BEREKET-AB, an Assistant Attorney General, do
certify that I caused to be served on this 6
th
day of November
2008, the foregoing Notice of Filing, Complaint, and a
Certificate of Service, upon the persons listed on said Notice by
placing same in an envelope bearing sufficient postage with the
United States Postal Service located at 100 West Randolph Street,
Chicago, Illinois.
ZEMEHERET BEREKET-AB
G,\Environmental Enforcement\Z BEREKET-AB\MONTALBANO\Pleading\NOF&Cert 11-6-0B.wpd
Electronic Filing - Received, Clerk's Office, November 6, 2008
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