E

CE

V

D

CLERK’S

OIRCE

FEB

2

STATE OF

QLINOJS

Pollution

Control

Board

OFFICE

OF

THE

ATFORNEY

GENERAL

STATE

OF

ILLINOIS

Lisa

Madigan

Kr[ORNEY

GENERAL

February

24,

2009

t

John

T. Therriault,

Assistant

Clerk

Illinois

Pollution

Control

Board

James

R.

Thompson

Center,

Ste. 11-500

100

West

Randolph

Chicago,

Illinois

60601

Re:

People

v. Stark

Excavating, Inc.

Dear

Clerk:

Enclosed

for

filing

please

find

the

original

and

ten

copies

of a

Notice

of

Filing,

Entry

of

Appearance

and

Complaint

in

regard

to

the

above-captioned

matter.

Please

file

the originals and

return

file-stamped

copies

to

me

in

the

enclosed,

self-addressed

envelope.

Thank

you

for

your

cooperation and

consideration.

Very

truly

yours

I

Steph

J. Janasie

Environmental

Bureau

500

South

Second

Street

Springfield,

Illinois

62706

(217)

782-9031

SJJ/pk

Enclosures

500

South

Second

Street,

Springfield,

Illinois

62706

• (217)

782-1090

TTY:

(877)

844-5461 • Fax:

(217)

782-7046

100

West

Randolph

Street,

ChicaEo,

Illinois

60601

• (312)

814-3000

• TTY:

(800)

964-3013 • Fax:

(312)

814-3806

---

BEFORE

THE ILLINOIS

POLLUTION CONTROL BOARD

PEOPLE

OF THE STATE OF

)

ILLINOIS,

)

)

Complainant,

)

vs.

)

PCB No.

)

(Enforcement)

STARK EXCAVATING, INC.,

)

an Illinois corporation,

Respondent.

)

NOTICE

OF FILING

To:

do

Stark

David

Excavating,

K. Stark,

Inc.R.A.

rCQ

2.

O

Os

1804 West Washington

Street

Q0

Bloomington, IL 61701

PLEASE TAKE NOTICE that

on

this

date I

mailed for filing with

the

Clerk of the

Pollution

Control Board of

the

State of

Illinois,

a

COMPLAINT,

a

copy

of which

is attached

hereto

and

herewith served upon 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 this

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 proceed.ing, the Clerk’s Office

or an

attorney.

1

---

FURTHER,

please take notice

that financing

may

be available,

through the Illinois

Environmental Facilities Financing Act,

20 ILCS

351

5/1 (2006),

to

correct the

pollution alleged in

the

Complaint filed in this case.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN,

Attorney General of the

State of

Illinois

MATTHEWJ. DUNN, Chief

Environmental

Enforcement/Asbestos

Litigation Division.

BY:________________________

SØ,iianasie

Ass istant Attorney

General

Environmental Bureau

500

South Second

Street

Springfield,

Illinois

62706

217/782-9031

Dated:

February 24,

2009

2

---

CERTIFICATE

OF

SERVICE

I

hereby

certify that I

did on February

24, 2009, send by

certified mail, with

postage

thereon

fully prepaid,

by depositing

in

a

United States

Post Office Box

a true and

correct

copy

of the

following

instruments

entitled NOTICE

OF FILING, ENTRY

OF

APPEARANCE

and

COMPLAINT:

To:

Stark

Excavating, Inc.

do

David K.

Stark, R.A.

1804

West

Washington

Street

Bloomington,

IL 61701

and the

original and

ten copies by

First Class Mail with

postage

thereon

fully

prepaid of the

same

foregoing

instrument(s):

To:

John

T.

Therriault, Assistant

Clerk

Illinois

Pollution

Control Board

James R.

Thompson

Center

Suite 11-500

100

West

Randolph

Chicago,

Illinois

60601

General

This

filing is

submitted on

recycled

paper.

---

RK

VED

OFFICE

BEFORE

THE

ILLINOIS

POLLUT1ON

CONTROL

BOARD

FE9

26

2009

PEOPLE

OF

THE

STATE

OF

)

!2

OF

ILLttjø

ILLINOIS,

)

‘uttOn

Control

Complainant,

vs.

)

PCBNo.OS

(Enforcement)

STARK

EXCAVATING,

INC.,

)

an Illinois

corporation,

Respondent.

ENTRY

OF

APPEARANCE

On

behalf of

the

Complainant,

PEOPLE OF

THE

STATE

OF

ILLINOIS,

STEPHEN

J.

JANASIE,

Assistant

Attorney

General

of the State

of Illinois,

hereby

enters

his appearance

as

attorney

of record.

Respectfully

submitted,

PEOPLE

OF THE

STATE

OF ILLINOIS,

LISA MADIGAN

Attorney General

of the

State

of Illinois

MATTHEWJ.

DUNN,

Chief

Environmental

Enforcement/Asbestos

Litig9i

BY:________________________

STAJS

I E

Envir6nrntaf

Bureau

Assistant

Attorney

General

500

South

Second Street

Springfield,

Illinois

62706

217/782-9031

Dated:

February

24, 2009

---

BEFORE

THE ILLINOIS POLLUTION

CONTROL

BOARD

PEOPLE OF

THE

STATE OF

ILLINOIS,

)

Complainant,

)

vs.

)

No. PCB 09-

)

(Enforcement)

STARK

EXCAVATING,

INC.,

)

anlllinoiscorporation,

)

ECEVED

)

CLERK’S

OFFICE

Respondent.

FEB

262009

COMPLAINT

STATE

OF

ILLINOIS

P

I

t

oritrol

Board

Complainant,

PEOPLE

OF THE STATE OF

ILLINOIS, by LISA M

I

,Attorney

General of the

State

of Illinois,

on her

own

motion

and

at

the

request of the ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

complains

of

Respondent,

STARK

EXCAVATING,

INC., as

follows:

COUNT I

WASTE

DISPOSAL

VIOLATIONS

1.

This

Complaint

is brought by the

Attorney General,

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

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

a/ia, with

the

duty

of

enforcing

the

Act.

3.

Respondent

STARK

EXCAVATING,

INC., is an Illinois

perpetual corporation

in

good

standing

with

the Illinois Secretary

of State’s

Office.

Respondent’s

President and

registered

agent

is

Mr. David

K. Stark.

4.

Respondent operates

a clean construction

and demolition

debris

disposal

site

---

(“site”)

which

is located

in Section

5

of Downs

Township,

just

outside

of the

western

outskirts

of

Downs,

Mclean

County,

Illinois,

and

immediately

north

of Interstate

74.

The

site

is a former

sand

pit

owned

by Mr.

David

K. Stark.

5.

Section

21

of

the Act,

415

ILCS

5/21

(2006),

provides,

in pertinent

part,

as

follows:

No person

shall:

***

d.

Conduct

any

waste-storage,

waste-treatment,

or waste-disposal

operation:

**

*

2.

In violation

of any

regulations

or

standards

adopted

by the

Board

under

this

Act;

***

e.

Dispose,

treat,

store

or abandon

any

waste,

or transport

any waste

into

this

State

for

disposal,

treatment,

storage

or

abandonment,

except

at a

site

or facility

which

meets

the

requirements

of this

Act and

of regulations

and standards

thereunder.

*

*

*

6.

Section

22.51

(a)

of the

Act,

415

(LCS

5/22.51

(a)

(2006),

provides

as

follows:

a.

No person

shall

conduct

any

clean

construction

or demolition

debris

fill

operation

in violation

of

this Act

or any

regulations

or standards

adopted

by

the Board.

*

*

*

7.

Section

1100.201(a)

of

the

Board’s

Clean

Construction

or Demolition

Debris

Regulations, 35

Ill.

Adm.

Code

1100.201,

provides

as

follows:

Prohibitions

a)

No

person

shall

conduct

any CCDD

fill

operation

in

violation

of the

Act or

any regulations

or

standards

adopted

by

the Board.

**

*

8.

Section

1100.210

of

the

Board’s

Clean

Construction

or Demolition Debris

2

---

Regulations,

35111.

Adm.

Code

1100.210,

provides,

in

pertinent

part,

as

follows:

The owner

or operator

must

maintain

an

operating

record

at the

facility

or

in

some

alternative

location

specified

in

the Agency

permit.

The owner

or operator

must

make

the

operating

record

available

for

inspection

and

copying

by the

Agency

upon request

during

normal

business

hours.

Information

maintained

in

the

operating

record

must include,

but

is not

limited

to,

the following:

*

*

*

b)

Written

procedures

for

load checking,

load

rejection

notifications,

and training

required

under Section

1100.205

of

this

Part.

*

*

*

9.

Section

1100.205

of the

Board’s Clean

Construction

or

Demolition

Debris

Regulations,

35

Ill. Adm.

Code

1100.205,

provides,

in pertinent

part,

as follows:

Load

Checking

The

owner

or

operator must

institute

and

conduct

a load checking

program

designed

to detect

attempts

to

dispose

of

waste

at the

facility.

At

a

minimum,

the

load

checking

program

must

consist

of

the

following

components:

*

**

b)

Random

Inspections

1)

In addition

to

the

inspections

required

under

subsection

(a) of this

Section,

an

inspector

designated

by

the facility

must conduct

a

discharge

inspection

of at

least

one

randomly

selected

load

delivered

to the

facility

each day.

The

driver

of

the

randomly

selected

load

must

be directed

to

discharge

the

load at

a

separate,

designated

location

within

the

facility.

The

inspector

must

conduct

an inspection

of

the

discharged

material that

includes,

but is

not limited

to,

additional

visual inspection

and

additional

instrument

testing

using

the

instruments

required under

subsection

(a)(1)

of this Section.

All instruments

shall

be

interpreted

based

on the

manufacturer’s

margin

of error.

Any

reading

in excess of

background

levels

using any

of these

instruments

must result

in the

rejection

of he inspected

load.

In

addition,

any

reading in

excess

of background

levels

on any

monitoring

device

used by

the Agency

during

an

Agency

inspection

must

result in

the rejection

of

the inspected

load.

3

---

*

**

c)

Documentation

of

Inspection

Results

The

documentation

for each

inspection

must include,

at a minimum,

the

following:

1)

The

date and

time of

the

inspection,

the name

of

the

hauling

firm,

the vehicle

identification

number

or license

plate

number, and

the

source

of

the CCDD;

**

*

g)

The

owner

or

operator

must ensure

that all

appropriate

facility personnel

are

properly trained

in the

identification

of

material that

is not CCDD.

***

h)

All field

measurement

activities

relative

to equipment

and instrument

operation,

calibration

and

maintenance

and

data

handling

shall

be conducted

in

accordance

with

the following:

1)

“Test

Methods

for Evaluating

Solid

Waste,

Physical/Chemical

Methods”

(SW-846),

Vol. One,

Ch. One

(Quality

Control),

incorporated

by

reference

at Section

1100.104

of

this Part;

2)

The

equipment

or instrument

manufacturer’s

or vendor’s

published

standard

operating

procedures;

or

3)

Other

operating

procedures

specified

in the Agency

permit.

**

*

10.

Section

3.540

of

the Act,

415

ILCS

5/3.540

(2006) provides

as follows:

Waste

disposal

site.

“Waste disposal

site”

is

a site

on

which

solid waste

is disposed.

11.

Section

3.470

of the Act,

415

ILCS

5/3.470

(2006), provides

as

follows:

Solid

waste.

“Solid

waste” means

waste.

4

---

12.

Section

3.535

of

the Act,

415

ILCS

5/3.535

(2006),

provides,

in pertinent

part:

Waste.

“Waste”

means

any

garbage,

sludge

from a

waste

treatment

plant,

water

supply

treatment

plant,

or air

pollution

control

facility

or other

discarded

material,

including

solid,

liquid,

semi-solid,

or contained

gaseous

material

resulting

from

industrial,

commercial,

mining

and

agricultural

operations, and

from

community

activities

*

**

13,

Section

3.160(b)

of

the Act,

415

ILCS 5/3.160(b)

(2006),

provides,

in

pertinent

part:

b)

“Clean

construction

or demolition

debris”

means

uncontaminated broken

concrete

without

protruding

metal bars,

bricks,

rock,

stone,

reclaimed

or

other

asphalt

pavement,

or soil

generated

from

construction

or

demolition

activities.

Clean

construction

or

demolition

debris

does not

include

uncontaminated soil

generated

during

construction,

remodeling,

repair,

and

demolition

of utilities,

structures,

and roads

provided

the

uncontaminated

soil is

not commingled with

any

clean construction

or

demolition

debris

or other

waste.

*

*

*

14.

Section

1100.103

of

the Board’s

Clean

Construction

or

Demolition

Debris

Regulations,

35

Ill.

Adm.

Code

1100.103,

provides,

in

pertinent

part:

“CCDD”

means

clean

construction

or

demolition

debris.

“CCDD

fill

operation”

means

the

use

of

CCDD

as

fill material

in

a current

or

former

quarry,

mine,

or other

excavation.

For purposes

of

this

Part, the

term

“other

excavation”

does

not

include

holes,

trenches,

or similar

earth

removal

created

as

part of

normal

construction,

removal,

or

maintenance

of

a

structure,

utility,

or transportation

infrastructure.

*

**

5

---

15.

On

or

about

September

25, 2007,

Illinois

EPA

inspectors

conducted

an

inspection

of Respondent’s

site.

At

that time,

Illinois

EPA

learned

that

Respondent

performed

no

inspections

of

incoming

loads

of clean

construction

and

demolition

debris

at the

site.

16.

On

or

about

September

25,

2007,

Illinois

EPA

inspectors

conducted

an

inspection

of Respondent’s

site.

At

that time,

Illinois

EPA

learned

that Respondent

maintained

no

records

on

site

of

the

incoming

loads

of

clean

construction

and

demolition

debris

at

the site.

17.

Respondent’s

site

is a

waste

disposal

site

as that

term

is

defined

in

Section

3.540

of

the

Act,

415 ILCS

5/3.540

(2006).

18.

Respondent’s

site

is

also

a CCDD

fill

operation

as that

term

is

defined

in Section

1100.103

of the

Board’s

Clean

Construction

of

Demolition

Debris

Regulations,

35111.

Adm.

Code

1100.103.

19.

By

allowing

for

the

accumulation

and

use

of clean

construction

and

demolition

debris

on

site

without

following

the

requisite

inspection

and

record

keeping

practices,

Respondent

violated

Section(s)

1100.210(b),

11

O0.205(b)(1),

11 00.205(c)(1),

1100.205(g)

and

1100.205(h)

of

the

Board’s

Clean

Construction

or

Demolition

Debris

Regulations,

35

Ill. Adm.

Code

1100.210(b),

11

00.205(b)(1),

11

00.205(c)(1),

1100.205(g)

and

1100.205(h).

20.

By

violating

the

above

referenced

Board

regulations,

Respondent

also

violated

Section(s)

21(d)(2),

21(e)

and

22.51(a)

of

the

Act,

415

ILCS

5121(d)(2),

21(e),

22.51(a)

(2006),

as

well

as Section

1100.201(a)

of

the

Board’s

Clean

Construction

or Demolition

Debris

Regulations,

35

III.

Adm.

Code

1100.201(a).

6

---

PRAYERFORRELJEF

WHEREFORE,

the Complainant,

People of the

State of

Illinois,

respectfully requests

that this

Board enter

an

Order against STARK

EXCAVATING, INC.:

A.

Authorizing

a hearing in this matter

at

which

time the Respondent

will be

required to

answer

the allegations

herein;

B.

Finding that the

Respondent has

violated the Act

and regulations as alleged

herein;

C.

Ordering Respondent

to

cease and desist

from any

further

violations of the

Act

and

associated

regulations;

D.

Pursuant

to

Section 42(a)

of the Act, 415 ILCS

5/42(a) (2006),

impose upon

the

Respondent

a

civil penalty

of not more than the

statutory maximum;

E.

Pursuant

to Section 42(f) of

the Act, 415 ILCS

5/42(f) (2006),

award the

Complainant its costs

in this matter,

including reasonable

attorney’s

fees and costs; and

F.

Grant such

other and further

relief as the Board

deems

appropriate.

COUNT

II

CCDD

FILL OPERATION VIOLATIONS

1 - 14. Complainant

realleges and

incorporates by

reference herein

paragraphs I

through

14 of

Count

las paragraphs

I through

14 of this

Count

II.

15.

Section

22.51(c)(2)(A)

of the

Act,

415 ILCS

5/22.51(c)(2)

(A)

(2006),

provides

as

follows:

c)

In accordance

with Title

VII

of this Act, the

Board may

adopt

regulations

to

promote

the

purposes

of this

Section. The Agency

shall consult with the

mining

7

---

and

construction

industries

during

the

developmbnt

of any

regulations

to

promote the

purposes

of this

Section.

*

**

2)

Until

the

Board

adopts

rules under

subsection

(c)(1)

of this

Section,

all

persons

using

clean

construction

or

demolition

debris

as

fill material

in a current

or former

quarry,

mine, or

other

excavation

shall:

A)

Assure

that

only

clean

construction

or

demolition

debris

is

being

used as

fill material

by

screening

each truckload

of

material

received

using a device

approved

by the

Agency

that

detects

volatile

organic

compounds.

Such devices

may

include, but

are

not

limited

to, photo

ionization

detectors.

All

screening

devices

shall

be

operated

and maintained

in

accordance

with

manufacturer’s

specifications.

Unacceptable

fill

material shall

be rejected

from the

site;

*

**

16.

Section

1100.205

of the

Board’s

Clean Construction

or

Demolition

Debris

Regulations,

35111. Adm.

Code

1100.205,

provides,

in pertinent

part,

as

follows:

Load

Checking

The

owner

or

operator

must

institute

and conduct

a

load checking

program

designed

to detect

attempts

to

dispose

of waste

at

the facility.

At a

minimum,

the

load

checking

program

must

consist

of the

following

components:

***

a)

Routine

Inspections

1)

An

inspector

designated

by

the facility

must inspect

every

load

before

its

acceptance

at the

facility

utilizing an

elevated

structure,

a

designated

ground

level inspection

area,

or another

acceptable

method

as specified

in

the

Agency

permit.

In

addition

to a

visual

inspection,

the

inspector

must use

an instrument

with a

photo

ionization

detector

utilizing

a

lamp of

10.6

eV

or

greater or

an

instrument

with a

flame ionization

detector,

or other

monitoring

devices

approved

by

the Agency,

to inspect

each load.

All

instruments

shall

be interpreted

based on the

manufacturer’s

margin

of error.

Any reading

in excess

of

background

levels

using

any

of these

instruments

must

result

in the rejection

of the

8

---

inspected

load.

In

addition,

any

reading

in

excess

of

background

levels

on

any

monitoring

device

used

by the

Agency during

an

Agency

inspection must

result

in

the rejection

of

the inspected

load.

17.

On

or

about

September

25, 2007,

Illinois

EPA

inspectors

conducted an inspection

of

Respondent’s site.

At

that time,

Illinois

EPA

learned

that

Respondent did

not

use

a

photo

ionization

detector (“PID

device”)

to

inspect

incoming

loads

of

clean

construction

and

demolition

debris

at the

site.

18.

By failing

to

inspect

incoming

loads

of

clean

construction and

demolition debris

at

the

sitewith

a

PID

device,

the

Respondents have

violated

Section

22.51(c)(2)(A)

of

the Act,

415

ILCS

5/22.51(c)(2)(A) (2006),

as

well

as Section

1100.205(a)(1)

of the

Board’s

Clean

Construction

or Demolition

Debris

Regulations.

35111.

Adm.

Code

1100.205(a)(1).

19.

By

violating

the

above

referenced

Section

of the

Act,

as well

as

the

above

referenced

Board

regulation,

Respondent

also

violated

Section(s)

21(d)(2),

21(e)

and

22.51

(a)

of

the

Act, 415

ILCS

5121(d)(2),

21(e),

22.51(a)

(2006),

as

well

as

Section

1100.201(a)

of the

Board’s

Clean

Construction

or

Demolition

Debris

Regulations,

35111.

Adm.

Code

1100.201(a).

PRAYER

FOR

RELIEF

WHEREFORE,

the

Complainant,

People

of

the State

of

Illinois,

respectfully

requests

that

the

Board

grant

the following

relief

against

STARK

EXCAVATING,

INC.:

A.

Authorizing

a

hearing

in

this matter

at

which

time

the Respondent

will

be required

to

answer

the allegations

herein;

B.

Finding

that

the Respondent

has

violated

the

Act

and

regulations

as

alleged

herein;

9

---

C.

Ordering

Respondent

to

cease

and

desist

from

any

further

violations

of the Act

and

associated

regulations;

D.

Pursuant

to

Section

42(a)

of the

Act,

415

ILCS

5/42(a)

(2006),

impose

upon the

Respondent

a monetary

penalty

of not

more

than the

statutory

maximum;

E.

Pursuant

to

Section

42(f)

of

the

Act,

415 ILCS

5/42(f)

(2006),

award

the

Complainant

its

costs in

this

matter,

including

reasonable

attorney’s

fees and

costs;

and

F.

Grant

such

other and

further

relief

as the

Board

deems

appropriate.

Respectfully

submitted,

PEOPLE

OF THE

STATE

OF

ILLINOIS,

LISA

MADIGAN

Attorney

General

of the

State

of

Illinois

MATTHEWJ.

DUNN,

Chief

Environmental

Enforcement/Asbestos

Litigation

Division

BY:_____________________

THOMAS

DAVIS,

Chief

Assistant

Attorney

General

Environmental

Bureau

Of

Counsel

STEPHEN

J.

JANASIE

Assistant

Attorney

General

500

South

Second

Street

Springfield,

Illinois

62706

217/782-9031

Dated:

February

24, 2009

10

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