ILLINOIS POLLUTION CONTROL BOARD

June 4, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

MOLINE PLACE DEVELOPMENT, LLC,

AND CROSSTOWNE PLACE

DEVELOPMENT, LLC,

Respondents.

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PCB 07-53

(Enforcement – Water)

OPINION AND ORDER OF THE BOARD (by S.D. Lin):

On January 3, 2007, the Office of the Attorney General, on behalf of the People of the

State of Illinois (People), filed a complaint against Moline Place Development, L.L.C. (Moline)

and CrossTowne Place Development, L.L.C. (CrossTowne) (collectively, respondents).

See

415

ILCS 5/31(c)(1) (2006)

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The pleadings in this case refer to both the 2004 and 2006 versions of the Illinois Complied

Statutes. As there is no difference in the relevant sections from the 2004 to the 2006

compilation, the Board will consistently reference the 2006 edition.

; 35 Ill. Adm. Code 103.204. The People allege that respondents

violated Section 12(a) and (f) of the Environmental Protection Act (Act) (415 ILCS 5/12(a)

(2006)), and Section 309.102(a) of the Board’s water pollution regulations. The People further

allege that respondents violated these provisions at two separate residential development projects

in Rock Island County by causing water pollution and violations of the National Pollutant

Discharge Elimination System (NPDES) permits for those sites issued by the Illinois

Environmental Protection Agency (IEPA).

The complaint concerns two residential housing areas, one called One Moline Place

located at 6th Street and 11th Avenue in Moline, and a second called CrossTowne Place located

near the intersection of 11th Avenue and Hospital Road in Silvis, both in Rock Island County.

Counts I and II of the complaint concern Moline Place, and counts III and IV concern

CrossTowne Place.

Today the Board decides an uncontested for summary judgment filed by the People on

March 5, 2009 against CrossTowne only as to Counts III and IV of the complaint. For the

reasons discussed below, the Board grants the People’s motion for summary judgment, finds

CrossTowne has committed the violations as alleged in the complaint, and grants the relief

requested by the People the motion. The Board orders respondent CrossTowne to pay the full

$15,000 civil penalty requested, to take actions to mitigate flooding it has caused as described later

in this opinion and order, and

to cease and desist from further violations.

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Today’s ruling concludes the case as to respondent CrossTowne only. The People’s case

against Moline remains pending and unaffected by this opinion and order.

This opinion and order first reviews the procedural history of this case. It then

summarizes the People’s complaint and addresses the facts deemed admitted. The opinion and

order then sets forth the relevant statutory and regulatory provisions. The Board next describes

the standard of review applied by the Board in considering summary judgment motions and then

summarizes the People’s motion for summary judgment. Next, the order provides the Board’s

discussion of and ruling on that motion before issuing the Board’s order.

PROCEDURAL HISTORY

On January 3, 2007, the People filed a four-count complaint (Comp.) alleging that

respondent had committed water pollution violations. In an order dated January 26, 2007, the

Board accepted the complaint for hearing. Neither respondent has filed an answer to the

complaint.

Review of the docket sheet in this case reveals that, since the complaint was filed, the

hearing officer has held 11 telephonic status conferences at roughly 2-3 month intervals.

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Telephonic status conferences were held in 2007 on March 1, May 1, July 3, September 11 and

November 13, 2007. In 2008, such conferences were held January 13, April 14, July 14, and

October 14, while in 2009 they were held January 13 and April 13.

As

memorialized in hearing officer orders following each of these telephone status conferences,

complainant has participated in all of them, but respondents participated only in the status

conference of May 1, 2007. However, it is clear from the hearing officers’ orders that the

complainant has been in contact with the respondents, that respondents have met with IEPA

which has conducted site inspections, and that respondents have agreed to take some but not all

suggested remedial actions.

See, e.g.,

People of the State of Illinois v. Moline Place

Development, L.L.C. and CrossTowne Place Development, L.L.C., PCB 07-53 (hearing officer

orders of Aug. 14 and July 14, 2008).

On October 28, 2008, complainant served CrossTowne with a request to admit facts and

genuineness of documents. The hearing officer order summarizing a January 13, 2009

telephonic status conference states that complainant reported that it had received no response to

its discovery request.

On March 5, 2009, complainant filed a motion for summary judgment (Mot.) as to

CrossTowne only. To date, however, the respondent has not filed an answer to the complaint

with the Board and has raised no affirmative defenses. Respondent has filed no response to the

People’s motion for summary judgment. The Board’s procedural rules provide that, “[w]ithin 14

days after service of a motion, a party may file a response to the motion. If no response is filed,

the party will be deemed to have waived objection to the granting of the motion, but the waiver

of objection does not bind the Board . . . in its disposition of the motion.” 35 Ill. Adm. Code

101.500(d). Respondent’s failure to respond to the motion for summary judgment has resulted

in waiving any objection to the Board granting the motion.

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The hearing officer summarized an April 13, 2009 status conference at which

respondents did not appear, but at which complainant reported:

According to complainant, both of the respondent corporations have been

involuntarily dissolved. With respect to respondent Moline Place Development,

L.L.C, complainant is considering a motion for summary judgment. With respect

to respondent CrossTowne Place Development, L.L.C., complainant is awaiting

the Board’s ruling on the motion for summary judgment filed on March 5, 2009.

PCB 07-53 (hearing officer order of Apr. 13, 2009).

PEOPLE’S COMPLAINT AS TO CROSSTOWNE: COUNTS III AND IV

As previously stated, Counts I and II of the People’s largely relate to Moline, and not

CrossTowne. Count III realleges the material in paragraphs 1-17 of Count I. Comp. at 10, ¶ 1-

17. Material from Count I is summarized here only to the extent that it is relevant to

CrossTowne.

Respondent, CrossTowne Place Development, LLC, is an Illinois limited liability

company whose registered agent was Michael R . Shamsie. CrossTowne Place owns and is

developing a residential housing area called CrossTowne Place located near the intersection of

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Avenue and Hospital Road, in Silvis, Rock Island County, Illinois. Comp. at 1 (¶5).

CrossTowne Place consists of three and 2/10ths (3.2) acres and is to include twelve homes.

Comp. at 1 (¶7).

On January 24, 2005, IEPA issued NPDES permit # ILRlOC205 to respondent for

CrossTowne Place. Comp. at 2 (¶9). CrossTowne Place discharges storm water into a small

unnamed stream that passes along the south side of the site and eventually discharges into the

Mississippi River. The unnamed stream adjacent to CrossTowne Place, the Sylvan Slough, and

the Mississippi River are "waters" of the State as that term is defined in Section 3 .550 of the

Act, 415 ILCS 5/3 .550 (2006). Comp. at 3 (¶11-12). Paragraphs 13-17 of the complaint recite

various statutory and regulatory provisions relevant to later alleged violations: Sections 3.545,

12(a) and 12(f) of the Act (defining and prohibiting water pollution at 415 ILCS 5/3.545, 12(a)

and (f)(2006)) , 35 Ill. Adm. Code 309.102 (prohibiting point source discharge without NPDES

permit), and 40 CFR 122.26, (construction activity including clearing, grading and excavation

required to obtain an NPDES permit and to implement a storm water pollution prevention plan

(SWPPP)). Comp. at 3-6 (¶11-12).

Count III

The People allege that on November 16 and 17, 2004, Mr. James Kammueller, IEPA

Division of Water Pollution Control/Field Operations Section, Peoria Region, inspected the

construction site at CrossTowne Place and observed that approximately half the site was

barren and without adequate erosion control measures. He noted that storm water drained to the

west and south into an unnamed stream and sediment deposits in the stream. He further

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observed a small retention pond with sediment deposits upstream of the pond outlet area along

barren slopes at the rear of homes. Comp. at 10 (¶18).

The complaint states that, during a phone conversation with Mr. Kammueller on

November 22, 2004, Mr. Shamsie, agent for CrossTowne Place, agreed to apply for an NDPES

storm water permit (which was lacking as to the CrossTowne site) and to provide additional

erosion control measures along the south and west edges of the site. Comp. at 11 (¶19). On

January 5, 2005, IEPA sent CrossTowne Place a violation notice (VN) letter citing

CrossTowne’s failure to obtain coverage under the general NPDES storm water permit, its

failure to provide or follow an adequate SWPPP, and the unlawful discharge of contaminants

into the environment. Comp. at 11 (¶20).

The People further allege that on January 25, 2005, Mr. Kammueller returned to inspect

the status of storm water controls finding that, although the NPDES permit had been applied for,

various compliance items remained as noted during the November 16 and 17, 2004 site

inspections. Comp. at 11 (¶21). By letter dated February 21, 2005, Mr. Shamsie responded to

the January 2005 VN letter, disputing some the recommended compliance items while providing

commitments for others yet to be done. Comp. at 11 (¶22). On March 21, 2005, the IEPA sent

CrossTowne a letter rejecting its proposed compliance commitment agreement (CCA) due to the

nature and seriousness of the violations and because construction was begun prior to obtaining a

permit. Comp. at 11 (¶23). On April 25, 2005, Mr. Shamsie sent a response to the CCA

rejection, providing certain compliance updates. Comp. at 12 (¶24).

The People’s complaint asserts that, on May 2, 2005, the IEPA sent CrossTowne Place a

notice of intent to pursue legal action (NIPLA) letter, reciting the violations included in the VN

letter. Comp. at 12 (¶25). On May 13, 2005, Mr. Shamsie sent Mr. Kammueller a set of photos

depicting areas of the site that had been either sodded or hydro-seeded. But, Mr. Shamsie did not

request a meeting pursuant to the NIPLA notice. Comp. at 12 (¶26).

The People contend that, on January 27, 2006 Mr. Kammueller re-inspected the

CrossTowne Place construction site. He observed that the lots on the west end of the cul-de-sac

near the retention pond, were not seeded and did not have sod placement. The vegetation density

was also inadequate and the retention pond outfall did not appear to have been modified to allow

the pond to hold water. Comp. at 12 (¶27).

Count III concludes with the assertion that the above facts demonstrate that the

respondent caused, allowed or threatened to cause water pollution by failing to

provide adequate storm water pollution controls, in violation of Section 12(a) of the Act, 415

ILCS 5112(a)(2006), and that these violations occurred repeatedly from at least November 16,

2004 . Comp. at 12 (¶27).

Count IV

In Count IV, the People reallege the facts detailed in paragraphs 1-27 of the complaint, as

detailed above. Comp. at 12 (¶27). Count IV concludes with the assertion that the above facts

demonstrate that respondent failed to obtain coverage under the general NPDES storm water

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permit for construction site activities in violation of 35 Ill. Adm. Code 309.102(a). Moreover,

the complaint alleges, by violating 35 Ill. Adm. Code 309.102(a), respondent has violated

Section 12(f) of the Act, 415 ILCS 5/12(f)(2006).

STATUTORY AND REGULATORY PROVISIONS

Section 3.545 of the Act provides that

“[w]ater 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. 415

ILCS 5/3.545 (2006).

Section 3.550 of the Act provides that “‘[w]aters’ 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.” 415 ILCS 5/3.550 (2006).

Section 12 of the Act provides in pertinent part that 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.

* * *

(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. 415 ILCS 5/12(a), 12(d), 12(f)

(2006).

Section 33(c) of the Act provides in its entirety that

(c)

In making its orders and determinations, the Board shall take into

consideration all the facts and circumstances bearing upon the

reasonableness of the emissions, discharges or deposits involved

including, but not limited to:

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(i)

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

(ii)

the social and economic value of the pollution source;

(iii)

the suitability or unsuitability of the pollution source to the area in

which it is located, including the question of priority of location in

the area involved;

(iv)

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

(v)

any subsequent compliance. 415 ILCS 5/33(c) (2006).

Section 42(h) of the Act provides that

In determining the appropriate penalty to be imposed . . . the Board is authorized

to consider any matters of record in mitigation or aggravation of penalty,

including but not limited to the following factors:

(i)

the duration and gravity of the violation;

(ii)

the presence or absence of due diligence on the part of the

respondent in attempting to comply with requirements of this Act

and regulations thereunder or to secure relief therefrom as

provided by this Act;

(iii)

any economic benefits accrued by the respondent because of delay

in compliance with requirements, in which case the economic

benefits shall be determined by the lowest cost alternative for

achieving compliance;

(iv)

the amount of monetary penalty which will serve to deter further

violations by the respondent and to otherwise aid in enhancing

voluntary compliance with this Act by the respondent and other

persons similarly subject to the Act;

(v)

the number, proximity in time, and gravity of previously

adjudicated violations of the Act by the respondent;

(vi)

whether the respondent voluntarily self-disclosed, in accordance

with subsection (i) of this Section, the non-compliance to the

Agency; and

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(vii)

whether the respondent has agreed to undertake a “supplemental

environmental project,” which means an environmentally

beneficial project that a respondent agrees to undertake in

settlement of an enforcement action brought under this Act, but

which the respondent is not otherwise legally required to perform.

415 ILCS 5/42(h) (2006).

Section 309.102(a) of the Board’s water pollution regulations provides in its entirety that

“[e]xcept as in compliance with the provisions of the Act, Board regulations, and the CWA

[Clean Water Act], 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.” 35 Ill. Adm. Code 309.102(a).

Storm water discharges are regulated by 40 CFR 122 .26,

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(1)

Prior to October 1, 1994, discharges composed entirely of storm water

shall not be required to obtain a NPDES permit except:

which requires a person to

obtain an NPDES permit and to implement a storm water pollution prevention plan for

construction activity including clearing, grading and excavation. The section provides in

pertinent part:

(a) Permit requirement.

* * *

(ii) A discharge associated with industrial activity (see §122.26(a)(4);

* * *

(4)

Discharges through large and medium municipal separate storm

sewer systems . . .

* * *

(9)

(i) On and after October 1, 1994, for discharges composed

entirely of storm water, that are not required by paragraph (a)(1)

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The Board does not have the authority to adjudicate violations of federal regulations, unless

specifically directed to do so by the Act.

See, e.g.

415 ILCS 9.1(b)(2006). But, as the People

explain in the complaint, 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. The

USEPA has authorized the State of Illinois to issue NPDES permits through the IEPA in

compliance with federal regulations. Comp. at 2.

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of this section to obtain a permit, operators shall be required to

obtain a NPDES permit only if :

* * *

(B)

The discharge is a storm water discharge

associated with small construction activity

pursuant to paragraph (b)(15) of this section;

* * *

(b)

Definitions.

* * *

(14)

Storm water discharge associated with industrial activity means

the discharge from any conveyance that is used for collecting

and conveying storm water and that is directly related to

manufacturing, processing or raw materials storage areas at an

industrial plant . . . . 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 of

less 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;

* * *

(15)

Storm water discharge associated with small construction activity

means the discharge of storm 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

total land 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.

40 CFR122.26 (2006).

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STANDARD OF DECISION FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the pleadings, depositions, admissions on file,

and affidavits disclose that there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,

693 N.E. 2d 358, 370 (1998);

see

35 Ill. Adm. Code 101.516(b) (Motions for Summary

Judgment). In ruling on a motion for summary judgment, the Board “must consider the

pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing

party.” Dowd & Dowd, 693 N.E.2d at 370 (1998).

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant’s right to relief “is clear and free from doubt.” Dowd & Dowd,

Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E. 2d 358, 370 (1998), citing Purtill v. Hess

Attached hereto as Exhibit “B” is the [October 29, 2008] Request for Admission

of Fact and Genuineness of Documents Directed to CrossTowne Place, L.L.C.

CrossTowne failed to respond to the Request for Admission of Fact and

Genuineness of Documents. All statements of fact set forth in the Request for

Admission of Fact and Genuineness of Documents are admitted. The genuineness

of the NPDES permit and NOT [Notice of Termination] attached to the Request

for Admission of Fact and Genuineness of Documents is admitted. Section

101.618(f) of the Board’s Procedural Rules, 35Ill. Adm. Code 101.618(f).

, 111 Ill.

2d 299, 240, 489 N.E. 2d 867, 871 (1986). However, a party opposing a motion for summary

judgment may not rest on its pleadings, but must “present a factual basis which would arguably

entitle [it] to judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999

(2nd Dist. 1994).

THE PEOPLE’S MOTION FOR SUMMARY JUDGMENT

On March 5, 2009 the People filed a motion for summary judgment. In the motion, the

People assert that

No Answer or responsive pleadings to the Complaint have been filed by

CrossTowne and, therefore, no affirmative defenses have been pleaded.

Complainant relies upon uncontroverted facts set forth in the Affidavit of James

E. Kammueller and in the Request for Admission of Facts Directed to

CrossTowne mailed on October 28, 2008. Mot. at 1.

The People go on to state that

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The People’s motion for summary judgment is not accompanied by a separate “motion

to deem facts admitted” of the type the Board often sees.

See, e.g.

People of the State of

Illinois v. Steve Soderberg d/b/a Steve's Concrete and Excavating, PCB 08-87 (Mar. 5,

Mot.

at 3.

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In addition to failing to respond to the complaint, or the request for admissions,

CrossTowne has also failed to respond to the People’s motion for summary judgment.

5

2009). But, Section 101.618 does not by its terms require that a motion be filed before

facts can be deemed admitted where there is no response to a discovery request. Section

101.618(c) requires that this plain language statement be included in the request to admit:

Failure to respond to the following requests to admit within 28 days may have

severe consequences. Failure to respond to the following requests will result in

all the facts requested being deemed admitted as true for this proceeding. 35 Ill.

Adm. Code 101.619(c).

Recipients of discovery requests have ample notice of the consequences of their failure to

respond without the filing of a separate motion to deem facts admitted.

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The Board’s procedural rules provide that, “[w]ithin 14 days after service of a motion, a

party may file a response to the motion. If no response is filed, the party will be deemed to have

waived objection to the granting of the motion, but the waiver of objection does not bind the

Board . . . in its disposition of the motion.” 35 Ill. Adm. Code 101.500(d).

Respondent’s failure to respond to the motion for summary judgment has

resulted in waiving any objection to the Board granting the motion made by the People.

The People argue that, based on the uncontroverted facts, the People have proven

all allegations of the complaint. Mot. at 5. The People then assert that the record

supports Board issuance of a remedy order, consistent with the factors of Sections 33(c)

and 42(h) of the Act. 415 ILCS 5/ 33(c) and 42(h) (2006).

As to the Section 33(c) factors, the People argue:

The water quality of the unnamed stream at the site and the Mississippi River was

adversely affected by the inadequate storm water pollution controls and

CrossTowne’s failure to comply with the NPDES general storm water permit.

There is social and economic benefit in the construction of new homes at the site.

Construction activity at the site was suitable for the area in which it occurred.

Providing adequate storm water pollution controls and complying with the

NPDES general storm water permit were both technically practicable and

economically reasonable. Sod placement was done around completed homes but

70% grass cover was not achieved for all the lots. A NOT [Notice of

Termination] was submitted by Mr. Shamsie on June 26, 2006 and the permit was

terminated on July 11, 2006.

Mot. at 6.

Concerning Section 42(h) factors, the People state:

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At the time of the November 16, 2004 inspection, CrossTowne had not applied

for NPDES storm water permit coverage for CrossTowne Place although

construction had already commenced. Portions of the site were barren without

erosion control measures and sediment deposits were present in the unnamed

stream and also upstream of the pond outlet. When Mr. Kammueller re-inspected

the CrossTowne Place site on September 20, 2006, final stabilization had not been

achieved even though the NOT had been submitted by CrossTowne.

After inspector Kammueller visited the site on November 16, 2004 CrossTowne

did apply for coverage under the NPDES permit. Subsequent inspections found

the storm water pollution controls remained inadequate. A NOT [Notice of

Termination] was submitted by CrossTowne in June 2006 even though final

stabilization had not been achieved.

CrossTowne delayed or avoided the costs of implementing adequate erosion

control measures at the site, delayed obtaining coverage under the general NPDES

permit and prematurely terminated the permit. CrossTowne benefitted

economically as a result of these acts of non-compliance.

* * *

To Complainant’s knowledge, CrossTowne has no previously adjudicated violations

of the Act.

CrossTowne did not voluntarily disclose the violations involved in this case.

The adjudication of this matter does not include a supplemental environmental

project. Mot at 8-9.

The People request that the Board enter an order granting summary judgment in their favor

along with a finding that CrossTowne has violated the Act and Board rules as alleged. As a remedy,

the People request the Board to impose a $15,000 penalty to aid in enforcement of the Act. Finally,

the People request the Board to order respondent to cease and desist from further violations, and to

lower the storm water inlet at the southeast corner of the site and to extend the sewer along the

south side far enough to the west to avoid flooding of the adjacent Ward Property. Mot. at 9.

DISCUSSION

The Board finds, as the People argued, that the uncontested facts are sufficient to

establish that respondent CrossTowne has violated the Act and the Board’s regulations as alleged

in the Counts III and IV of the complaint. Below, the Board reviews evidence and arguments

offered in its support before making its findings and reaching its conclusions.

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Uncontested Facts Deemed Admitted Due to Failure To Respond to Discovery and As

Supported by Affidavit in the Motion

In the following section, the Board sets out the uncontested facts. The Board finds these

facts are deemed admitted since CrossTowne has failed to respond to the Complaint, has failed to

provide a sworn response to the Request for Admission of Fact and Genuineness of Documents,

and has failed to respond to the People’s motion and supporting affidavit.

.

CrossTowne is an Illinois limited liability company in good standing, whose principal

office is located at 455 42nd Avenue, East Moline, Illinois. Michael R. Shamsie is

CrossTowne’s register agent. Mr. Shamsie is a licensed professional engineer and the president

of an engineering firm known as Landmark Engineering Group, Inc. whose principal office is

located at 455 42

nd

Avenue, East Moline, Illinois.

CrossTowne is developing a residential housing area commonly referred to as

CrossTowne Place located near the intersection of 11th Avenue and Hospital Road, in Silvis,

Rock Island County, Illinois. CrossTowne Place discharges storm water into a small unnamed

stream that passes along the south side of the site and eventually discharges into the Mississippi

River.

CrossTowne began construction activities at CrossTowne Place without first obtaining

coverage under the NPDES permit. CrossTowne failed to maintain in good working order

erosion and sediment control measures at CrossTowne Place. CrossTowne caused or allowed

sediment deposits to accumulate in the unnamed stream and also upstream of the pond outlet

area at the rear of the site. Mot. at 2.

On November 16, 2004, IEPA’s James E. Kammueller made his original inspection of

the construction site at CrossTowne Place, when 8 homes were currently in some phase of

construction. At that time, approximately half of the 3.2 acre site was barren, without erosion

control measures; sediment deposits were present in the unnamed stream and also upstream of

the pond outlet area at the rear of homes. At the time of this original inspection, CrossTowne

had not applied for NPDES storm water permit coverage for CrossTowne Place and had no

SWPPP. Mot. at 1.

On January 24, 2005, IEPA issued NPDES permit No. ILR1OC2O5 to CrossTowne after

a corrected “Notice of Intent” (NOI) was submitted to it listing CrossTowne, rather than

Landmark Engineering, as the site owner. Mot. at 1-2. CrossTowne’s NPDES permit required

it to develop a SWPPP according to good engineering practices (Permit, Part IV).

Implementation of the provisions of the SWPPP is a condition of the NPDES permit. The

SWPPP must be completed prior to the start of the construction. (Permit, Part IV.A.1). The

SWPPP must be signed and retained on site (Permit, Part IV.B.1).

Mr. Kammueller returned to re-inspect the status of storm water controls on January 25,

2005. He observed that a row of un-secured straw bales had been placed at the edge of the small

stream on the south side of the site, but no erosion controls were in place for the barren area to

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the west.

Id

. at 2. When Mr. Kammueller re-inspected the CrossTowne Place site on January

27, 2006, the lots on the west end of the cul-de-sac were not seeded, did not have sod placement,

and the vegetative density was less than 70%.

Id.

CrossTowne submitted a “Notice of Termination” (NOT) of its NPDES permit to IEPA,

and the permit was terminated on July 11, 2006. Mot. at. 3. By filing a NOT, CrossTowne

certified that all disturbed areas of the site had been finally stabilized (Permit, Part II.F.1.d).

“Final stabilization” means that a uniform perennial vegetative cover with a density of 70%

cover for unpaved areas and areas not covered by permanent structures has been established

(Permit, Part VIII). Mot. at 5. But, CrossTowne submitted the NOT for the site without first

achieving final stabilization as required by the NPDES general permit.

Id.

When Mr.

Kammueller re-inspected the CrossTowne Place site on September 20, 2006, the vegetation

cover was not at the minimum 70% density for vacant lots 7, 8, and 9 nor along the very south

sides of lots 2, 3, 4, 5, and 6.

Id.

Adjacent to CrossTowne Place is residential property commonly known as 1128

Hospital Road, Silvis, Illinois, owned by Randall Ward and Toni Ward (the Ward Property).

Mot. at 3-4. Due to the higher elevation of the storm water inlet CrossTowne placed at the

southeast corner of the site, storm water is caused to back up in the road ditch south along

Hospital Road.

Id.

at 4. Because CrossTowne did not extend the outlet for the sewer along the

south side of the site far enough to the west, storm water is caused to flood the backyard of the

Ward Property.

Id.

Liability Determination

Counts III and IV of the complaint allege that a) CrossTowne caused, allowed or

threatened to cause water pollution by failing to provide adequate storm water pollution controls, in

violation of Section 12(a) of the Act, 415 ILCS 5/12(a)(2006); b) CrossTowne failed to obtain

coverage under the general NPDES storm water permit prior to commencing construction site

activities,

in violation of 35 Ill. Adm. Code 309.102(a) and Section 12(f) of the Act, 415 ILCS 5/12(f)

(2006); c) CrossTowne failed to prepare and implement an adequate SWPPP in violation of 35 Ill.

Adm. Code 309.102(a) and Section 12(f) of the Act, 415 ILCS 5/12(f) (2006); and d) CrossTowne

submitted an NOT prior to final stabilization being achieved at the site in violation of 35 Ill. Adm.

Code 309.102(a) and Section 12(f) of the Act, 415 ILCS 5/12(f) (2006).

The record demonstrates that the unnamed stream at CrossTowne Place and the

Mississippi River are “waters” of the State as that term is defined in Section 3.550 of the Illinois

Environmental Protection Act (“Act”), 415 ILCS 5/3.550 (2006). The storm water discharged

from the CrossTowne Place site constitutes a “contaminant” as defined by Section 3.165 of the

Act, 415 ILCS 5/3.165. The storm water system at CrossTowne Place constitutes a “point

source” as that term is defined in the federal Clean Water Act, 33 U.S.C. § 1362(14).

Id.

The record demonstrates that, on January 24, 2005, IEPA issued NPDES permit No.

1LR10C205 to CrossTowne. But, the record also demonstrates CrossTowne commenced

construction and development activity at the CrossTowne Place site without first obtaining

coverage under the NPDES permit and without a SWPPP. Only after inspector Kammueller

visited the site on November 16, 2004 did CrossTowne apply for coverage under the NPDES

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14

permit. During the November 16, 2004 inspection, sediment deposits were observed to be

present in the unnamed stream and also upstream of the pond outlet area at the rear of homes.

The record demonstrates that CrossTowne submitted a “Notice of Termination” (NOT) to

IEPA, certifying that site stabilization was complete, so that the NPDES permit was terminated

on July 11, 2006. But, the record demonstrates that hen Mr. Kammueller re-inspected the

CrossTowne Place site on September 20, 2006, after the NOT had been submitted, final

stabilization had not been achieved. Because CrossTowne placed the storm water inlet at the

southeast corner of site at too high an elevation and did not extend the outlet for the sewer along

the south side far enough to the west, storm water from the site is causing damage to the

neighboring Ward Property.

The Board finds that the allegations deemed admitted pursuant to Section 101.618 (f) of

the Board’s procedural rules (35 Ill. Adm. 101.618 (f))) are sufficient to prove that there are no

genuine issues of material fact and that the People are entitled to judgment as a matter of law on

count III and IV.

See

35 Ill. Adm. Code 101.516(b). Consequently, the Board grants the

People’s motion for summary judgment as to Count III and IV and finds that respondent violated

Sections 12(a) and (f) of the Act, 415 ILCS 5/12(a) and (f) (2006), 35 Ill. Adm. Code

309.102(a), and 42 CFR 122.

Remedies

The People here have requested multiple remedies: a remediation order, a cease and

desist order, and a civil penalty. In fashioning all of its orders, the Board must consider the

factors of Section 33(c) of the Act. If the Board determines a penalty is appropriate, the Board

must also consider the factors of Section 42 (h) of the Act.

Section 33(c)

Addressing the factors at Section 33(c) of the Act (415 ILCS 5/33(c) (2006)), the People

suggested that the water quality of the unnamed stream at the site and the Mississippi River was

adversely affected by CrossTowne’s activities. Mot. at 7. The Board finds that CrossTowne’s

failure to apply for and receive a permit prior to the start of construction, as well as its use of

inadequate erosion and sediment control measures resulted in a significant “injury to or

interference with the protection of the health, general welfare and physical property of the

people” and weighs this factor in favor of requiring remedies sought by the People.

See

415

ILCS 5/33(c)(1) (2006). It is clear that without an order from the Board, that the Ward Property

will continue to suffer damage, in addition to that caused to the waters of the State.

Regarding “the social and economic value of the pollution source,” the People suggest

that new home construction has social value. Mot. at 7;

see

415 ILCS 5/33(c)(2) (2006). On the

issue of “the suitability or unsuitability of the pollution source to the area in which it is located,”

the People also claim that the site was suitable for construction.”

Id.

;

see

415 ILCS 5/33(c)(3)

(2006). There is nothing in the record to refute these claims. But, the Board notes that one facet

of these values and site suitability considerations must be that construction is properly performed

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15

after receipt of, and in compliance with, all required permits. As this has not been the case with

CrossTowne, the Board weighs these two factors in favor of remedies sought by the People.

The People also argue that “[p]roviding adequate storm water pollution controls and

complying with the general storm water permit was both technically practicable and

economically reasonable.” Mot. at 7;

see

415 ILCS 5/33(c)(4) (2006). Respondent has in no

way opposed this argument, and the Board finds that this factor weighs in favor of remedies

sought by the People.

Addressing the final factor of any subsequent compliance,

see

415 ILCS 5/33(c)(5)

(2006), the People state that the site has not been completely remediated: while sod placement

was completed, the required 70% grass cover has not been completed for all lots. Mot. at 7.

Moreover, stormwater continues to flood the backyard of the ward property.

Id.

at 4. The

Board finds that this factor weighs in favor of respondent.

The Board finds on the basis of the record before it that the Section 33(c) factors weigh in

favor of granting all of the relief requested by the People, including a civil penalty. In reaching

this finding, the Board places considerable emphasis on CrossTowne’s failure to apply for and

comply with required permits, and the fact that water pollution continues to occur.

To determine the appropriate penalty amount, the Board below considers factors listed in

Section 42(h) of the Act.

See

415 ILCS 5/42(h) (2006).

Section 42

The Board notes that, under Section 42(a) of the Act, violators are liable for a civil

penalty of up to $50,000 for each violation and an additional penalty of $10,000 for each day that

the violations continues.

See

415 ILCS 5/42(a) (2006). The People suggest that a $15,000

penalty is appropriate here “based upon the specific facts of this matter”. Mot at 9.

Section 42(h) articulates the aggravating and mitigating factors that the Board weighs in

determining an appropriate civil penalty (

see

415 ILCS 5/42(h) (2006)). The first two factors

relate to the duration and gravity of the violation, and any due diligence of respondent in

attempting to comply. See 415 ILCS 5/42(h)(1) and (2) (2006). As to these, the People allege

that CrossTowne began construction in 2004 without the required permit and SWPPP, applied

for same only after a site visit by the IEPA inspector, filed the NOT of that permit in 2006

signifying compliance with its terms, but had not completed the site stabilization that the NOT

required. Mot. at 8-9. The Board notes that the record indicates the permit violations have

persisted, as does the resulting water pollution to the waters of the State and the Ward Property.

The Board weighs this “gravity and duration” factor against respondent.

On the issue of respondent’s diligence, the Board finds that this factor mainly weighs

against respondent. S

ee

415 ILCS 5/42(h)(2) (2006). While respondent did eventually apply for

the required permit, he terminated it without fully complying with conditions.

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16

The People contend that that respondent has accrued economic benefit as a result of the

violations, since it has

delayed or avoided the costs of implementing adequate erosion control measures

at the site, delayed obtaining coverage under the general NPDES permit and

prematurely terminated the permit. Mot. at 9;

see

415 ILCS 5/42(h)(3) (2006).

The record contains no evidence to the contrary, and the Board weighs this factor against

respondent.

The People state that respondent “has no previously adjudicated violations” of the Act.

Mot. at 9;

see

415 ILCS 5/42(h)(5) (2006). The Board weighs this factor in favor of respondent.

With regard to self-disclosure, the People claim that respondent “did not voluntarily

disclose the to the IEPA under Section 42(i). Mot. at 9;

see

415 ILCS 5/42(h)(6) (2006);

see also

415 ILCS 5/42(i) (2006) (providing for reduction in penalty for voluntary self-disclosure of non-

compliance discovered through audit to Agency). The Board weighs this factor against

respondent.

Finally, the People stated that respondent has not offered to perform a supplemental

environmental project. Mot. at 9;

see

415 ILCS 5/42(h)(7) (2006). The Board weights this

factor against respondent.

Finally, on the issue of deterrence, the People argue that a maximum civil penalty of

$15,000 “will serve to deter further violations and aid in future voluntary compliance”. Mot. at

9;

see

415 ILCS 5/42(h)(4) (2006). Respondent has offered no facts or arguments to dispute this.

The Board finds that the Section 42(h) factors justify the imposition of the $15,000

penalty on respondent as proposed by the People.

See

People v. Ogoco, Inc., PCB 06-16, slip op.

at 10 (Sept. 21, 2006) (imposing People’s unopposed penalty request), citing People v. J&F

Hauling, Inc., PCB 02-21 (Feb. 6, 2003). In reaching this finding, the Board places particular

weight on the duration and gravity of the violation and on respondent’s lack of due diligence in

attempting to comply with the Act and the Board’s regulations. The Board notes that this sum is

in line with recent penalties for uncontested water pollution violations.

See, e.g.

Illinois v. Steve

Soderberg d/b/a Steve's Concrete and Excavating, PCB 08-87 (Mar. 5, 2009) (summary

judgment order imposing $12,000 penalty).

CONCLUSION

The Board grants the People’s unopposed motion for summary judgment, deeming facts

admitted under 35 Ill. Adm. Code 101.618(f). The Board finds that respondent CrossTowne

violated the Act and the Board’s regulations as alleged in the two counts of the complaint

directed against it (Counts III and IV). The Board orders CrossTowne to perform site

remediation as detailed below and imposes the People’s requested civil penalty of $15,000 on

respondent. In addition, the Board requires respondent to cease and desist from further

violations of the Act and the Board’s regulations.

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