BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant,
)
)
v.
)
PCB No. 09-
) (Enforcement - Water)
KEN
RAWSON, individually
)
)
Respondent.
)
To:
Mr. Kenneth
A. Rawson
308 West Erie, Suite 700
Chicago, Illinois 60654
NOTICE OF FILING
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of
the Illinois Pollution Control Board by electronic filing the following Complaint, a copy
of which is attached and hereby served upon you.
BY:
DATE: April 17,
2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
. stant Attorney General
ironmental Bureau
9 W. Washington
St., 18th Floor
Chicago, Illinois
60602
(312) 814-5361
Electronic Filing - Received, Clerk's Office, April 17, 2009
* * * * * PCB 2009-081 * * * * *
CERTIFICATE OF SERVICE
I, VANESSA
A.
V AIL, an Assistant Attorney General, do certify that I caused to
be served this 17th day
of April 2009, the foregoing NOTICE OF FILING, and
COMPLAINT, by certified mail with return receipt requested to the person listed on the
Notice, and depositing same with the United States Postal Service located at 69 West
Washington Street, Chicago, Illinois,
60602.
Electronic Filing - Received, Clerk's Office, April 17, 2009
* * * * * PCB 2009-091 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS, )
)
Complainant,
)
)
v.
)
PCB No. 09-
) (Enforcement - Water)
KEN RA
WSON, individually
)
)
Respondent.
)
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex ref.
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, KEN
RAWSON, individually, as follows:
COUNT I
WATER POLLUTION
1.
This count is brought on behalf of the PEOPLE OF THE STATE OF
ILLINOIS,
ex ref.
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 Sections 42( d) and ( e) of the Illinois Environmental Protection Act
("Act"), 415 ILCS 5/42(d) and (e) (2006).
2.
The Illinois EPA is an administrative agency established in the executive
branch
of the 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
charged with the duty to abate violations of the National Pollutant Discharge Elimination
System ("NPDES") pennit program under the Federal Clean Water Act ("CWA"), 33
Electronic Filing - Received, Clerk's Office, April 17, 2009
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U.S.C. § 1342(b )(7) (2006).
3.
At all times relevant to this Complaint, Respondent, KEN RAWSON
("Rawson"),
was and is an Illinois resident.
4.
On September 17, 2004, Illinois EPA issued to Rawson NPDES coverage
under the General
NPDES Permit for storm water discharges from construction site
activity related to the installation of a sanitary sewer and potable water lines to service
future residential :mbdivisions in the City
of Crystal Lake, McHenry County, Illinois
("NPDES Permit"'). At all time relevant to the Complaint, Rawson was the designated
permittee under the
NPDES Permit.
5.
Thl~
sanitary sewer and potable water lines extended west from Briarwood
Road, along Illinois
State Route 176 toward Illinois State Route 47 in Crystal Lake
("Site"; also refened to as the "Bryn Mawr Sanitary Sewer Installation Project"). The
Site consists of an approximately 10 acre strip of land and is located in McHenry County.
6.
Stonn water runoff from the Site flows into a storm ditch that extends
along Route 176
al1d discharges into the Kishwaukee River.
7.
Upon information and belief, the Site borders and directly affects a State
jurisdictional wetland as well as federally designated High Functioning wetlands K999,
K1003, K1011 and High Habitat ADID wetland K958.
8.
On May 31, 2007, Illinois EPA inspected the Site. Illinois EPA conducted
the inspection as a follow-up to two previous Illinois
EPA inspections that were
conducted on July 27, 2006 and August 2, 2006. At the time of the May 31, 2007
inspection,
constru~tion
of the sewer line was near completion.
9.
DUflng the May 31,2007 inspection, erosion and sediment controls that
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Electronic Filing - Received, Clerk's Office, April 17, 2009
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were installed in August 2006 had been removed. The sediment and erosion controls that
were being used at the time
of the inspection were improperly maintained.
10.
At the time of the May 31, 2007 inspection, soils originally in the wetland
area were stockpiled at various locations throughout the Site. During the inspection, the
stockpiled soils were not stabilized or protected, and no silt control measures were in
place to prevent soil from entering the wetland area. Sediment-laden water was entering
the wetland area during the inspection.
11.
At the time
of the May 31, 2007 inspection, erosion and silt control
measures were not in place at the Site to prevent the migration
of sediment into storm
water. During
tht: inspection, sediment was entering the roadside ditch at numerous
locations along Route 176.
12.
In
October 2007, the Site received proper erosion control blanketing and
became permanently stabilized.
13.
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
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.
14.
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.
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Electronic Filing - Received, Clerk's Office, April 17, 2009
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15.
Respondent Rawson is a "person" as that tenn is defined in Section 3.315
of the Act, 415 ILCS 5/3.315 (2006).
16.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2006), provides the following
definition:
"CONT AMINANT" is any solid, liquid, or gaseous matter, any odor, or
any fonn of energy, from whatever source.
17.
Silt, soil and sediments are
"contaminants" as that tenn is defined in
Section 3.165
of the Act, 415 ILCS 5/3.165 (2006).
18.
Se,::tion 3.545 of the Act, 415 ILCS 5/3.545 (2006), provides the following
definition:
WATER
POLLUTION: is such alteration of the physical, thennal,
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 hannful or detrimental
or Injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other legitimate uses,
or
1:0 livestock, wild animals, birds, fish, or other aquatic life.
19.
Section 3.550 of the Act, 415 ILCS 5/3.550 (2006), provides the following
definition:
"WATERS" means all accumulations of water, surface and underground,
natural, and artificial, public and private, or parts thereof, which are
wh,)lly or partially within, flow through, or border upon this State.
20.
The roadside ditch alongside Route 176, downstream tributaries, and the
Kishwaukee River are each "waters" as that tenn is defined in Section 3.550 of the Act,
415 ILCS 5/3.550
(2006).
21.
ThE: lack of adequate erosion control measures at the Site from at least
May 31,2007 to alleast October 1,2007, caused, threatened or allowed silt-laden stonn
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Electronic Filing - Received, Clerk's Office, April 17, 2009
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water and sediment to discharge into the wetland area and roadside ditch which
ultimately flows into the Kishwaukee River. Such silt and sediment altered,
or threatened
to alter the physical, thermal, chemical
or radioactive properties of the ditch, wetland and
the Kishwaukee River; rendered, or were likely to render them harmful, detrimental or
injurious to wild animals, birds, fish and other aquatic life;
or created or were likely to
create a nuisance.
22.
By his actions and omissions, Rawson caused, threatened or allowed the
discharge
of a contaminant into the environment so as to cause or tend to cause water
pollution in Illinots, in violation of 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 in favor of Complainant and against
Respondent,
KEN
RAWSON:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 12(a) of the Act, 415 ILCS
5/12(a) (2006);
3.
Ordering the Respondent to cease and desist from any future violations of
Section 12(a) ofthe Act, 415 ILCS 5/12(a) (2006);
4.
As~essing
a civil penalty of Fifty Thousand Dollars ($50,000.00) against
the Respondent for each violation of the Act, and an additional civil penalty ofTen
Thousand Dollars ($10,000) for each day of violation;
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Electronic Filing - Received, Clerk's Office, April 17, 2009
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5.
Ordering Respondent topay all costs, pursuant to Section 42(f) of the Act,
415
ILCS 5/42(f) (2006), 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
WATER POLLUTION HAZARD
1-19. Complainant realleges and incorporates by reference herein paragraphs 1
through
12 and paragraphs 14 through 20 of Count I as paragraphs 1 through 19 of this
Count II.
20.
Section 12(d) of the Act, 415 ILCS 51l2(d) (2006), provides, in pertinent
part, 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.
21.
From at least May 31,
2007 to at least October 1, 2007, Rawson caused
and/or
allowed silt and sediments from the Site to flow into the roadside ditch alongside
Route 176, which
:f1ows to the Kishwaukee River.
In
addition, Rawson allowed disturbed
soil and soil stockpiles to remain adjacent to the wetland areas without adequate erosion
control to prevent the runoff of soil from the stockpiles into the wetland.
22.
Respondent,
by his actions alleged herein, deposited contaminants onto
the land so as to
cfl~ate
a water pollution hazard, in violation of Section 12( d) of the Act,
415
ILCS 51l2(d) (2006).
6
Electronic Filing - Received, Clerk's Office, April 17, 2009
* * * * * PCB 2009-091 * * * * *
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor of Complainant and against
Respondent,
KEN RAWSON:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated
Section 12(d) of the Act, 415 ILCS
5/12(d) (2006);
3.
Ordering the Respondent to cease and desist from any future violations of
Section 12(d) of the Act, 415 ILCS
5/12(d) (2006);
4.
As,:;essing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
the Respondent for each violation
of the Act, and an additional civil penalty ofTen
Thousand Dollars ($10,000) for each day of violation;
5.
Ordering Respondent to pay all costs, pursuant to Section 42(f) of the Act,
415
ILCS
5/42(f)
(2006), 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
~lPDES
STORMWATER PERMIT VIOLATIONS
1-18. Complainant realleges and incorporates by reference herein paragraphs 1
through 12, paragraphs 14 through 17, and paragraphs 19 and
20 of Count I as paragraphs
1 through
18 of thi::; Count III.
19.
Section 12(f) ofthe Act, 415 ILCS
5/12(f)
(2006); provides, in pertinent
part, as follows:
7
Electronic Filing - Received, Clerk's Office, April 17, 2009
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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.
20.
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 ("USEP A")
administers the NPDES program in each State unless the USEP A has delegated authority
to do so to that
State.
21.
The USEPA has authorized the State of Illinois to issue NPDES permits
through the Illinoi:; 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 ("SWPP") for
construction activi ty including clearing, grading and excavation.
22.
At all times relevant to the Complaint, Respondent
Rawson's discharges
were subject to the Act and the rules and regulations 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 PoL.ution Regulations").
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Electronic Filing - Received, Clerk's Office, April 17, 2009
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23.
Sc;:ction 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 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.
24.
Rawson's
NPDES Permit requires, in part, that Respondent utilize and
maintain
adequate storm water control measures to prevent erosion, that Respondent
obtain a signed certification statement for each contractor or subcontractor identified in
the SWPPP and that a copy of the project's Notice of Intent ("NOI") and SWPPP be kept
on-Site and available for review upon request.
25.
During the May
31,2007 inspection, no SWPPP or NOI were at the Site
or available for review.
26.
FfCom at least May 31, 2007 through October 1, 2007, Respondent failed to
adequately addres:; erosion control issues at the Site. Respondent failed to adequately
stabilize silt, soil
and sediment, and allowed sediment runoff to the roadside ditch and
wetland at the
Site.
27.
By failing to adequately address erosion control issues at the Site, and
failing to have his
SWPPP and NOI at the Site, Respondent Rawson violated the
conditions and provisions
of his NPDES Permit.
28.
By :tllowing storm water discharges from the Site in violation of his .
NPDES storm
watl~r
permit for construction site activities, Respondent Rawson violated
Section 12(f) of the Act, 415 ILCS 5/12(f) (2006), and 35 Ill. Adm. Code 309.102(a).
9
Electronic Filing - Received, Clerk's Office, April 17, 2009
* * * * * PCB 2009-091 * * * * *
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor of Complainant and against
Respondent,
KEN RAWSON:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein; ,
2.
Finding that Respondent violated Section 12(f) of the Act, 415 ILCS
5/12(f) (2006), and 35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondent to cease and desist from any future violations of
Section 12(f) of the Act, 415 ILCS 5/12(f) (2006), and 35 Ill. Adm. Code 309.l02(a);
4.
As:;essing a civil penalty ofTen Thousand Dollars ($10,000.00) for each
day during which each violation
of the Act and any NPDES program-related regulation
of the Board continued;
5.
Ordering Respondent to pay all costs, pursuant to Section 42(f) of the Act,
415 ILCS 5/42(f)
(2006), 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.
BY:
PEOPLE OF THE STATE OF ILLINOIS
ex reI.
LISA MADIGAN,
Attorney General
of the
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/Asbestos
~DiViSion
•
ROSEMAR
AU, Chie
Environmental Bureau
Assistant Attorney General
10
Electronic Filing - Received, Clerk's Office, April 17, 2009
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Of Counsel:
VANESSA A. VAIL
Assistant Attorney General
Environmental Bureau
69 West Washington
Street, Suite 1800
Chicago, Illinois 60602
(312) 814-5361
11
Electronic Filing - Received, Clerk's Office, April 17, 2009
* * * * * PCB 2009-091 * * * * *
