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.
)
)
MOHAMMAD AKRABA WI,
)
d/b/a DEERFIELD CROSSINGS, LLC,
)
)
Respondent.
)
PCB NO. 09-
(Enforcement -Water)
NOTICE OF FILING
TO:
Francis
X.
Lyons
Attorney at Law
Bryan Cave LLP
161 North Clark Street, Suite 4300
Chicago, Illinois 60601-3715
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
1 03.204(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,
you should contact the hearing officer assigned to this proceeding, the Clerk's Office or an
attorney."
BY:
DATE: June 29, 2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
69 W. Washington
St.,
18
th
FIr.
Chicago, IL 60602
(312) 814-3816
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, June 29, 2009
* * * * * PCB 2009-131 * * * * *
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J.
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.
MOHAMMAD AKRABAWI,
d/b/a DEERFIELD CROSSINGS, LLC,
Respondent.
)
)
)
)
)
)
)
)
)
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, MOHAMMAD AKRABA WI,
d/b/a Deerfield Crossings, LLC, as follows:
COUNT I
CAUSE,
THREATEN OR ALLOW WATER POLLUTION
1.
This Complaint is brought on behalfofthe 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 ("Illinois EPA"),
pursuant to the terms and provisions
of 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
".
~
..
National Pollutant Discharge Elimination System ("NPDES") Permit Program under the Federal
Clean Water Act ("CWA"),
33 U.S.C. §1342(b)(7).
3.
At all times relevant to the complaint, RESPONDENT, Mohammad Akrabawi,
d/b/a Deerfield Crossings LLC, owned and operated Deerfield Crossings, LLC ("LLC") which is
the owner/developer
of Deerfield Crossings Subdivision ("Site"). The Site is 147 acres in size.
The Site is located at the southeast quadrant
of the intersection of Illinois Route 23 and U.S.
Route 30 on the east side
of the Village of Waterman, DeKalb County, Illinois. The closest
receiving stream to the Site is Somonauk Creek.
4.
On March 20, 2006, the Illinois EPA received a Notice of Intent for general
permit to discharge storm water from construction site activities from Mohammad Akrabawi for
the Deerfield Crossings Site.
5.
On April 19, 2006, the Illinois EPA issued to Deerfield Crossings Subdivision a
notice
of coverage for storm water discharge associated with construction site activities NPDES
Permit No. ILR10F194.
6.
On March 21, 2007, the Illinois EPA, Rockford Regional Office inspected the
Site and observed the following:
(a)
the letter granting coverage under the NPDES general storm water permit
was not posted for public viewing at the Site as required by the permit;
(b)
the Site lacked the proper sediment stabilization required in the NPDES
general storm water permit;
(c)
the berms
of the detention basin located on the northern portion of the
Site, and the discharge channel leading from the basin both lacked
stabilization;
2
"
(d)
stonn water discharge was leaving the basin, flowing through a culvert
under railroad tracks to a roadside ditch and into Somonauk Creek;
(e)
a portion
of the silt fence along the western perimeter ofthe Site was
down; and,
(f)
a portion
of the silt fence on the eastern perimeter was down and water
was flowing off-site, over the downed silt fence into an adjacent fann.
7.
On June 27, 2007, the Illinois EPA issued a violation notice ("VN") to
Respondent citing failure to comply with tenns and conditions
of the NPDES general stonn
water
pennit and stonn water violations.
8.
On July 20,2007, Respondent responded to the
VN letter by submitting his
Compliance Commitment Agreement ("CCA").
9.
On August 22, 2007 the Illinois EPA rejected the CCA due to the nature and
seriousness
of the violations.
10.
On September 13, 2007, the Illinois EPA conducted a
brief follow-up inspection
of the Site and observed that the detention outlet from the north detention pond was overgrown
with vegetation, observed erosion in the ground sloping toward the silt fence, the silt fence on the
south side
of the Site was overgrown with vegetation and the Site as a whole was sparsely
covered with weeds rather than proper ground cover. The Site was not properly stabilized.
11.
On February 19,2008, the Illinois EPA sent a notice
of intent to pursue legal
action ("NIP LA") letter to Respondent.
12.
On May
5,2008, the Illinois EPA conducted a third inspection ofthe Site and
again observed that the Site was not properly stabilized and that some stonn sewer inlets were
chocked with vegetation that had been carried to the inlet
by stonn water. Sediment controls
3
were not maintained and ground cover was lacking. The detention pond outlet was "heavily
silted" and weeds were growing out
of the grated outlet.
13.
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, whether 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 as follows:
"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.
15.
Mr. Mohammad Akrabawi, an individual, and Deerfield Crossings LLC are both a
"person" as that term is defined in Section 3.315
of the Act, 415 ILCS 5/3.315 (2006).
16.
Section 3.545
of the 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, 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.
17.
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.
18.
The detention ponds, discharge channels, and Somonauk Creek are "waters," as
that term is defined in Section 3.550
of the Act, 415 ILCS 5/3.550 (2006).
19.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2006), provides as follows:
4
"CONTAMINANT" is any solid, liquid, or gaseous matter, any odor, or any form
of energy, from whatever source.
20.
The silt-laden storm water runoff from the Site that flowed into the detention
ponds and eventually into Somonauk Creek is a "contaminant," as that term is defined
by Section
3.165
of the Act, 415 ILCS 5/3.165 (2006).
21.
The discharge of contaminants, such as silt-laden runoff, from the Site into waters
of the State, constitutes "water pollution," as that term is defined by Section 3.545 of the Act,
415 ILCS 5/3.545 (2006).
22.
By allowing disturbed soils to remain unstabilized and without adequate erosion
control protection, Respondent caused, threatened or allowed the discharge
of contaminants, into
the environment.
23.
By causing, threatening or allowing discharge of contaminants into the detention
pond, discharge channels and Somonauk Creek, Respondent caused, threatened or allowed water
pollution in Illinois, in violation
of Section 12(a) of the Act, 415 ILCS 5/12(a) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
request 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 12(a) of the Act, 415 ILCS 5112(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).
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4.
Assessing against the Respondent a civil penalty of Fifty Thousand Dollars
($50,000.00) each for each and every violation
of the Act, with an additional penalty ofTen
Thousand Dollars ($10,000.00) against the Respondent for each day of violation;
5.
Ordering Respondent to implement adequate erosion control protection measures;
6.
Ordering Respondent to pay all costs including attorney, expert witness and
consultant fees expended by the State in its pursuit
of this action; and
7.
Granting such relief as the Board deems appropriate and just.
COUNT II
CREATING A WATER POLLUTION HAZARD
1-22. Complainant realleges and incorporates by reference herein paragraph 1 through
22
of Count I as paragraphs 1 through 22 of this Count II.
23.
Section 12(d) of the Act, 415 ILCS ILCS 51l2(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.
24.
By grading the entire 147 acres site without first implementing adequate erosion
controls, Respondent allowed silt to be deposited and remain exposed at the
Site in such place
and manner as to create a water pollution hazard, in violation
of Section 12(d) of the Act, 415
ILCS
5/12(d) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order in favor
of Complainant and against Respondent with
respect to this Count
II:
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Electronic Filing - Received, Clerk's Office, June 29, 2009
* * * * * PCB 2009-131 * * * * *
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 12(d)
of the Act, 415 ILCS 5/12(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);
4.
Assessing against the Respondent a civil penalty
of Fifty Thousand Dollars.
($50,000.00) each for each and every violation of the Act, with an additional penalty ofTen
Thousand Dollars ($10,000.00) per day for each day violation;
5.
Ordering Respondent to implement adequate erosion control measures;
6.
Ordering Respondent to
pay all costs including attorney, expert witness and
consultant fees expended
by the State in its pursuit of this action; and
7.
Granting such relief as the Board deems appropriate and just.
COUNT III
VIOLATION OF NPDES PERMIT
1-22. Complainant realleges and incorporates by reference herein paragraph 1 through
22
of Count II as paragraphs 1 through 22 of this Count III.
23.
Section 12(f)
of the Act, 415 ILCS 5/12(f) (2006), provides as follows:
No person shall:
*
*
*
*
(f)
Cause, threaten or allow the discharge of any contaminant into the waters
of the State, as defined herein, including but not limited to, waters to any
sewage works,
or into any well or from any point source within the State,
without an NPDES permit for point source discharges issued
by the
Agency under Section 39(b)
of this Act, or in violation of any term or
condition imposed by such permit, or in violation of any NPDES permit
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* * * * * PCB 2009-131 * * * * *
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.
24.
Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.l02(a), titled, NPDES Permit Required, provides
as follows:
a.
Except as in compliance with the provisions ofthe 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.
25.
Respondent's General NPDES Permit for Storm Water Discharges from
Construction Site Activities No. ILRIOF194, 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."
26.
During the September 13, 2007 inspection, the Illinois EPA inspector observed
that only two houses on the 147 acre site were built and the remaining areas
of the Site remained
dormant as
of May 2008, and the Site was not stabilized even though construction activity had
ceased. Stabilization measures should have been initiated within 14 days
of the cessation of
construction activities as required by NPDES Permit No. ILRI0 Part IV.D.2(a).
27.
Failure to stabilize the Site as soon as possible in portions
of the Site where
construction activities had ceased is a violation
ofNPDES Permit ILR10F194 and also a
violation
of Section 309.1 02(a) ofthe Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a).
8
28.
By failing to take stabilization measures as called for by NPDES Permit No.
ILR10F194 Part IV.D.2(a), at its construction site, Respondent violated
35 Ill. Adm. Code
309.102(a) and Section 12(f)
of the Act, 415 ILCS 5/12(f) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
request that the Board 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;
2.
Finding that Respondent has violated Section 12(f) of the Act, 415 ILCS
5112(f)(2006), and
35 Ill. Adm. Code 309.102(a);
3.
Ordering Respondent to cease and desist from any further violations of Section
12(f)
of the Act, 415 ILCS 5/12(f) (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 ofTen Thousand Dollars ($10,000.00) per day of
violation for each day of violating Section 12(f) of the Act, 415 ILCS 5112 (f) and 35 Ill. Adm.
Code 309.102(a)
ofthe Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
5.
Ordering Respondent to implement adequate erosion control and protection
measures;
6.
Ordering Respondent to pay all costs including attorney, expert witness and-
consultant fees expended by the State in its pursuit of this action; and
7.
Granting such relief as the Board deems appropriate and just.
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* * * * * PCB 2009-131 * * * * *
COUNT IV
NPDES PERMIT VIOLATION- FAILURE TO POST
NOTIFICATION OF COVERAGE
1-22.
Complainant realleges and incorporates by reference herein paragraphs 1 through
22
of Count III as paragraphs 1 through 22 of this Count IV.
23.
Part II.D.2
ofNPDES Permit #ILR10F194 provides as follows:
A copy
of the letter of notification of coverage or other indication that storm
water discharges from the site are covered under an NPDES permit shall be
posted at the site in a prominent place for public viewing (such as alongside a
building permit).
24.
During the March
21,2007 inspection, a copy of the letter of notification of
coverage was not posted at the Site.
25.
By failing to post the notification of coverage, Respondent violated Part II.D.2 of
NPDES Permit No. ILR10F194.
26.
By violating Part II.D.2 of the NPDES Permit No. ILR10F194, Respondent also
violated Section 12(f)
of the Act, 415 ILCS 5/12(f)(2006) and Section 309.102(a) of the Board
Water Pollution Regulations,
35 Ill. Adm. Code 309.102(a).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent Mohammad Akrabawi, on this
Count IV:
1.
Authorizing a hearing in this matter at which time the Respondent Mohammad
Akrabawi will be required to answer the allegations herein;
2.
Finding that the Respondent has violated Part II.D.2 of its NPDES Permit No.
ILR10F194 Permit, Section 12(f) of the Act, 415 ILCS 5/12(f)(2006), and Section 309.102(a) of
the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.l02(a);
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Electronic Filing - Received, Clerk's Office, June 29, 2009
* * * * * PCB 2009-131 * * * * *
3.
Ordering the Respondent to cease and desist from any further violations of Part
II.D.2
of its NPDES Permit No. ILR10F194, Section 12(f) ofthe Act, 415 ILCS 5/12(f)(2006),
and Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
Assessing against the Respondent, pursuant to Section 42(b)(1) of the AGt, a civil
penalty
ofTen Thousand Dollars ($10,000.00) for each day of each violation of Section 12(f) of
the Act and 35 Ill. Adm. Code 309.102(a);
5.
Ordering the Respondent, pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit
of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT V
NPDES PERMIT VIOLATION- FAILURE TO HAVE STORM WATER
POLLUTION PREVENTION PLAN AVAILABLE AT THE SITE
1-22. Complainant realleges and incorporates by reference herein paragraphs 1 through
22
of Count IV as paragraphs 1 through 22 of this Count V.
23.
Part IV.B.1 ofNPDES Permit #ILRIOF194 provides as follows:
Part IV. Stormwater Pollution Prevention Plans
*
*
*
*
The plan shall be signed in accordance with Part VI.G (Signatory Requirements),
and be retained on-site
at the facility which generates the storm water discharge in
accordance with Part VI.E (Duty to Provide Information) of this permit.
24.
During the March 21,2007 inspection, Respondent did not maintain on Site a
copy
of the Stormwater Pollution Prevention Plan as required by NPDES Permit.
25.
By failing to retain and post at the Site a copy of the Stormwater Pollution
Prevention Plan, Respondent Akrabawi violated Part IV.B.1
ofNPDES Permit #ILR10F194.
11
26.
By violating Part IV.B.1 ofNPDES Permit #ILR10F194, Respondent violated
Section 12(f)
of the Act, 415 ILCS 5/12(f)(2006) and Section 309.102(a) of the Board Water
Pollution Regulations,
35 Ill. Adm. Code 309.1 02(a)(2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against the Respondent, on this Count
V:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that the Respondent has violated Part IV.B.1
ofNPDES Permit
#ILR10F194, Section 12(f)
of the Act, 415 ILCS 5/12(f)(2006), and Section 309.102(a) of the
Board Water Pollution Regulations,
35 Ill. Adm. Code 309.102(a);
3.
Ordering the Respondent to cease and desist from any further violations of Part
IV.B.1
of the General Stormwater Permit, Section 12(f) of the Act, 415 ILCS 5/12(f)(2006), and
Section 309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
4.
Assessing against the Respondent, pursuant to Section 42(b)(1) of the Act, a civil
penalty
ofTen Thousand Dollars ($10,000.00) for each day of each violation of Section 12(f) of
the Act and 35 Ill. Adm. Code 309.102(a);
5.
Ordering the Respondent, pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit
of this action, including attorney,
expert witness, and consultant fees; and
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* * * * * PCB 2009-131 * * * * *
6.
Granting such other relief as the Board deems appropriate and just.
'Of Counsel:
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
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
Assistant Attorney General
G:\Environmental Enforcement\Z BEREKET-AB\Mohammad Akrabawi Complaint 4-27-09.doc
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Electronic Filing - Received, Clerk's Office, June 29, 2009
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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 29
th
day of June 2009, the foregoing Notice of Filing, and a Complaint, upon
Mr. Francis
X. Lyons, Attorney at Law, via Certified Mail 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\Mohammad Akrabawi - NOF&Cert 6-29-09.doc