1 ILLINOIS POLLUTION CONTROL BOARD

3 PEOPLE OF THE STATE OF ILLINOIS, )

)

4 Complainant, )

)

5 vs ) PCB 02-21

) RCRA Enforcement

6 J & F HAULING, INC., )

)

7 Respondent. )

9 REPORT OF PROCEEDINGS held at the

10 hearing of the above-entitled case, before

11 BRADLEY P. HALLORAN, commencing in the County of

12 Cook and State of Illinois, 100 West Randolph,

13 Room 11-512, Chicago, Illinois, on the 2nd of

14 October, A.D., 2002, at 9:35 a.m.

1 A P P E A R A N C E S:

2 ILLINOIS POLLUTION CONTROL BOARD,

100 West Randolph Street

3 James R. Thompson Center

Suite 11-500

4 Chicago, Illinois 60601

(312) 814-8917

5 BY: MR. BRADLEY P. HALLORAN, Hearing Officer

OFFICE OF THE ATTORNEY GENERAL,

7 188 West Randolph Street

Chicago, Illinois 60601

8 (312) 814-5388

BY: MR. CHRISTOPHER J. GRANT

Appeared on behalf of the Complainant;

11 ALSO PRESENT:

12 MS. ROSE MARIE CAZAUE

MR. MITCHELL COHEN

1 I N D E X

THE WITNESS: ANNA VANORDEN

PAGES

Examination by Mr. Grant............ 9

1 MR. HEARING OFFICER: Good morning.

2 My name is Bradley Halloran. I'm a hearing officer

3 here with the Illinois Pollution Control Board. I'm

4 assigned to this matter, PCB 02-21 entitled People

5 versus J & F Hauling Incorporated. It's

6 approximately 9:35 on October 2nd in the year 2002.

7 I want to note for the record that

8 there are no members of the public here, but if

9 there were, there would be a lot of testifying, then

10 there's cross-examination.

11 We're going to run this hearing

12 pursuant to Section 103.212 and Section 101

13 Subpart F under the Board's general provisions.

14 I note that this hearing is

15 intended to develop a record for review for the

16 Illinois Pollution Control Board. I will not be

17 making the ultimate decision in the case. That

18 decision will be left to the seven esteemed members

19 of the Pollution Control Board. And they'll review

20 the transcript of this proceeding and the remainder

21 of the record and render a decision in this matter.

22 My job is to ensure an orderly

23 hearing, clear record, and rule on any evidentiary

24 matters that may arise.

1 After the hearing, the parties

2 will be given an opportunity to submit post-hearing

3 briefs, if they choose. These too will be

4 considered by the Board. I note that the Board

5 granted complainant's motion for summary judgment on

6 June 6, 2002 and directed that this hearing be held

7 on issues of penalties, cost, and attorney fees.

8 To that end, the parties are only

9 to present testimony and evidence that are relevant

10 to the factors and cause that are set forth in

11 Section 33(c) and 42(h) of the Act.

12 This includes proposing a remedy

13 for a violation, if any, whether to impose a civil

14 penalty and supporting it's position with facts and

15 arguments that address any and all of Section 33(c)

16 factors and proposing a civil penalty, if any,

17 including a specific dollar amount, and supporting

18 it's position with facts and arguments that address

19 any or all of Section 42(h) factors.

20 I note for the record that

21 respondent is not present and the respondent has

22 been repeatedly warned in the Hearing Officer Orders

23 that it must be represented by counsel.

24 With that said, this proceeding

1 will be run in accordance with Section 101.608, the

2 Board's procedural rules entitled default.

3 Mr. Complainant, would you like to

4 introduce yourself?

5 MR. GRANT: Yes, Mr. Halloran. My

6 name is Christopher Grant, and I am the attorney

7 handling this case for the complainant. I'm with

8 the Environmental Bureau of the Illinois Attorney

9 General's Office.

10 Mr. Hearing Officer, may I begin?

11 MR. HEARING OFFICER: Yes, you may.

12 You're giving an opening

13 statement?

14 MR. GRANT: Yes, I'd like just a brief

15 opening statement.

16 Mr. Halloran, on August 17, 2001,

17 the State filed a complaint against the respondent,

18 J & F Hauling Incorporated, an Illinois corporation.

19 The complainant's complaint was based on the

20 facility owned and operated by the respondent

21 located at 7753 West 47th Street, McCook,

22 Cook County, Illinois.

23 In its complaint, complainant

24 alleges multiple violations of the Illinois

1 Environmental Protection Act. As noted by the

2 hearing officer on June 6, 2002, the Board granted

3 the State's motion for summary judgment and found

4 that the respondent has violated Sections 21(a),

5 21(d1), 21(d2), 21(E), 21(p1), and 55(a) of the Act,

6 as well as 35 Illinois Administrative Code Sections

7 722.102, 808.121, and 812.101(a).

8 The Board also found the

9 respondent may be liable for attorney's fees

10 expended by the State pursuant to Section 42(f) of

11 the Environmental Protection Act.

12 The purpose of this hearing is to

13 establish pursuant to Sections 33(c) and 42(f) and

14 (h) the appropriate basis for a civil penalty.

15 The State will call one witness in

16 this matter. Anna VanOrden is an experienced

17 inspector for the Illinois Environmental Protection

18 Agency. Ms. VanOrden is familiar with the location

19 of the violations and with the respondent.

20 From July 7, 1999 until the

21 present, Ms. VanOrden has regularly visited

22 respondent's facility located at 7753 West 47th

23 Street, McCook, Illinois. Ms. VanOrden will testify

24 that from the first inspection until her last on

1 September 24, 2002, the respondent has caused and

2 allowed the open dumping of construction and

3 demolition debris at the site.

4 She will testify from that same

5 day in 1999 until at least August 27 of this year,

6 the respondent allowed the open dumping of used and

7 waste tires. She will also testify that throughout

8 the same period the respondent had failed to

9 remediate a portion of the site where an oil leak

10 contaminant has been dumped.

11 The State is seeking a penalty for

12 the respondent's violation pursuant to the Act, but

13 it is also seeking a remedial order of the Board.

14 A substantial amount of waste

15 remains at the site in the control of the

16 respondent. The State will ask the Board to order

17 removal of this waste within a reasonable period of

18 time.

19 The State will also ask the Board

20 to order the respondent to investigate,

21 characterize, and remove the spilt contaminant at

22 the site and to order the respondent to cease and

23 assist from prior violations of the Act.

24 Your Honor, before we get started,

1 I'd like to offer Complainant's Exhibit A, which is

2 the Board order issued granting the complainant's

3 motion for summary judgment.

4 (Document tendered.)

5 MR. GRANT: Your Honor, I'd like to

6 call Ms. Anna VanOrden as a witness.

7 THE COURT: Sure. The court reporter

8 will swear you in if you raise your right hand.

9 (Witness sworn.)

10 WHEREUPON:

11 ANNA VANORDEN

12 called as a witness herein, having been first duly

13 sworn, deposeth and saith as follows:

14 E X A M I N A T I O N

15 BY MR. GRANT:

16 Q. Ms. VanOrden, can you please give your

17 name and spell your last name for the record,

18 please?

19 A. Anna VanOrden.

20 Q. And where are you employed?

21 A. Illinois EPA at the Des Plaines

22 regional office.

23 Q. What is your position?

24 A. I'm a field operator for solid waste.

1 Q. And can you briefly describe your

2 position?

3 A. I do inspections, I write reports, I

4 do complaint investigations, I do operational

5 inspections, I do permitted and unpermitted facility

6 inspections.

7 Q. And how long have you been employed

8 with the Illinois EPA?

9 A. Since April 1992.

10 Q. And have you been doing inspections

11 for approximately that same period?

12 A. Yes, I have.

13 Q. As a regular part of your job,

14 following an inspection, do you write or generate

15 reports?

16 A. Yes, I do.

17 Q. And are these reports kept in the

18 regular course of business?

19 A. Yes.

20 Q. And -- strike that.

21 Are you familiar with the

22 respondent in this case, J & F Hauling, Inc.?

23 A. Yes, I am.

24 Q. Can you describe the respondent's

1 business?

2 A. He's an operator of construction,

3 demolition operation. Basically demolishes

4 buildings and then removes the debris and is

5 supposed to dispose of it properly.

6 Q. Are you familiar with the location of

7 the violations in this case, that is, 7753 West

8 47th Street in McCook?

9 A. Yes, I am.

10 Q. Please describe the area surrounding

11 that location, which I will hereinafter refer to as

12 the site.

13 A. North of 47th Street is some small

14 businesses but mostly residential, south of the

15 facility or the site are railroad tracks, and on the

16 other side of the railroad tracks are trailer

17 operators and transfer station. On the east and

18 west side there's also properties used for parking

19 semi-trailers.

20 Q. Approximately how large is the site?

21 A. I'm not sure. I believe it's about

22 three acres, but I might be wrong.

23 Q. And is there a driveway leading from

24 47th Street into the main location of the site?

1 A. Yes, there is.

2 Q. Can you estimate approximately how far

3 that is?

4 A. I would say about 150 feet.

5 Q. And inside of that driveway, is there

6 a fence?

7 A. Yes, there is. There's a locked gate.

8 In order to access the facility, you would have to

9 unlock it.

10 Q. And inside of the locked gate, I'm

11 speaking headed in the southward direction from

12 47th Street, is that where the waste is stored at

13 the site?

14 A. Yes, it is.

15 Q. Can you give me an estimate

16 approximately how far it is from the location of the

17 waste to 47th Street?

18 A. About 150 feet or so.

19 Q. And on the other side of 47th Street,

20 is that where the residential area begins?

21 A. Yes, it is.

22 Q. So would it be accurate to say, as an

23 estimate, that perhaps 200 feet between the location

24 of the waste pile and the beginning of the

1 residential area?

2 A. Yes, it is.

3 Q. Okay, thank you.

4 How did you first come to visit

5 the site?

6 A. We received a complaint and I went out

7 there to do the complaint investigation. At the

8 time I went out there -- I'm sorry. Can I review --

9 I can't remember if anybody was there the first time

10 or the second time.

11 MR. GRANT: Your Honor, at this point,

12 I'd like to offer Complainant's Exhibit

13 Number B.

14 MR. HEARING OFFICER: Okay.

15 (Document tendered

16 to the witness.)

17 BY MR. GRANT:

18 Q. Ms. VanOrden, I've given you what's

19 been marked as Complainant's Exhibit Number B, have

20 you seen this document before?

21 A. Yes, I have.

22 Q. And did you prepare it?

23 A. Yes, I did.

24 Q. Is this the inspection report that was

1 prepared following your inspection of the site on

2 July 7, 1999?

3 A. Yes, it is.

4 Yes, I did go out there. I had to

5 honk the horn in order to get the gate open since

6 there's nobody available at the gate. The office

7 manager allowed me entrance into the facility. She

8 could not tell me much about what's going on there.

9 She did contact the owner, Jim Fergelic.

10 Q. Could you spell that, please, for the

11 record?

12 A. Yes, F-E-R-G-E-L-I-C. And I spoke to

13 the gentleman on the phone. I explained to him why

14 I was there, that it was a complaint investigation.

15 I need to do a site investigation, take some

16 photographs.

17 I also explained to him that it

18 was obvious there's an open dump waste pile

19 alongside of the property that would need to be

20 removed, and once it's removed, the documentation

21 with the receipts would have to be submitted to the

22 Agency as a proper disposal.

23 Also, I explained to him that

24 there was some staining on the ground. He would

1 need to analyze that and also remove it, properly

2 dispose of it, submit the analysis and the

3 paperwork.

4 I also explained to him if he

5 wants to continue working as he has been, he would

6 either need to get a permit from the agency or under

7 the new Section 22.38 do a notification form for his

8 activities. And I did leave the forms with the

9 facility and I explained to them they need to

10 complete all this, they would get a letter, and let

11 me know what's going on.

12 Q. Let me ask you a little bit more

13 specifically, did you go to the site as a result of

14 a citizen complaint?

15 A. Yes, I did.

16 Q. And you were asked to investigate a

17 complaint for open dumping of waste?

18 A. Yes.

19 Q. I'd like to ask you some specific

20 questions about the site, and I'm referring to when

21 you first visited on July 7, 1999.

22 You mentioned staining near the

23 front, are you referring -- can you explain

24 specifically where that location was?

1 A. Facing south at the gate on the west

2 side of the property, there was a pile of dirt. It

3 was summer, so it was pretty warm and you could

4 smell the odors coming off from the ground, so I

5 assume something had been dumped over there. And

6 that's why I wanted the soil to be sampled and then

7 disposed of properly.

8 Q. Is that approximately at the location,

9 at the entrance of the facility?

10 A. Yes, it is.

11 Q. Did you take pictures when you were

12 out there on July 7?

13 A. Yes, I did.

14 Q. And are those pictures attached to

15 your report?

16 A. Yes, they are.

17 Q. Going to the waste that was there at

18 the site, I'm going to refer you to complainant's

19 Exhibit Number B, on, I think, the fourth page

20 there's a diagram on the inside that shows the

21 location of the various things, if you could refer

22 to it in Exhibit B.

23 Did you prepare this, this

24 diagram?

1 A. Yes, I did.

2 Q. And is it an accurate representation

3 of the site on July 7, 1999?

4 A. Yes, it is.

5 Q. On the left of the site I notice that

6 there is a -- that there is a -- marked on the

7 diagram waste pile, is that the waste that you

8 referred to earlier?

9 A. Yes, it is.

10 Q. And how would you characterize that

11 waste?

12 A. It's construction demolition debris

13 consisting of wood, metal, pieces of furniture,

14 concrete, brick, some tires sticking out, a lot of

15 siding.

16 Q. Can you tell us how large the pile was

17 approximately?

18 A. I estimate approximately about

19 120 feet long, 20 feet wide, and 20 feet high.

20 Q. Did you make an estimate of the volume

21 of waste at that time or immediately thereafter?

22 A. I estimated about 1700 cubic yards.

23 Q. Since that time, have you learned

24 anything that suggests that might have been an

1 underestimate?

2 A. Yes, I have. They have been removing

3 the piles, and about 50 percent has been removed and

4 we've already approximately approached that 1700

5 cubic yards, so --

6 Q. But it's fair to state that you

7 observed at least 1700 yards of construction

8 demolition debris at the site on July 7, 1999?

9 A. Yes, I did.

10 Q. Did you notice any worn or damaged

11 tires not mounted on rims or otherwise described as

12 used tires at the site?

13 A. Yes, I did.

14 Q. And I notice on the diagram that's

15 attached with Complainant's Exhibit B there is

16 marked used tires at the top of the diagram, was

17 that the location that you saw the used tires?

18 A. Most of them, yes.

19 Q. Can you describe how large the pile

20 was?

21 A. Visibly, I could see approximately

22 20 to 30 tires. It was hard to get an exact number

23 because a lot of it was buried under the concrete

24 and under the C and D, so from what I could see,

1 that's what I would estimate.

2 Q. Do you know how this waste came to the

3 site?

4 A. Just from daily operation of the

5 facility. They brought it on-site after their work

6 off-site.

7 Q. When you say they, you mean J & F

8 Hauling?

9 A. J & F.

10 Q. Now, you mentioned a permit

11 application, let me ask you a couple questions about

12 that.

13 At the time that you first visited

14 the site on July 7, 1999, was the site covered by

15 any Illinois EPA waste handling permits of any kind?

16 A. No, it was not.

17 Q. Did the respondent subsequently make

18 any sort of application for waste permit?

19 A. Not for a waste permit. They did

20 complete it under Section 22.38 notification form.

21 They submitted it to me for review and I called them

22 back to let them know that it was not complete.

23 There's a lot of information missing. I sent them a

24 copy of what it should look like, but I've never

1 heard anything more from them.

2 Q. So they never resubmitted another

3 permit application?

4 A. As far as I know, no.

5 Q. Can you tell me if at any time from

6 July 7, 1999 until today, the date of this hearing,

7 the site was ever covered by any Illinois EPA

8 permits of any kind?

9 A. Not as far as I know.

10 Q. Thank you.

11 At the time that you spoke with

12 Mr. Fergelic and with his employees at the site, did

13 you advise them that they were operating in

14 violations?

15 A. Yes, I did.

16 Q. And was a violation notice

17 subsequently issued to them?

18 A. Yes, it was.

19 Q. Did you visit the site again on

20 May 23, 2000?

21 A. Yes, I did.

22 MR. GRANT: Mr. Hearing Officer,

23 offering what I've marked as Complainant's

24 Exhibit C, and I'd like to show that to the

1 witness.

2 (Document tendered

3 to the witness.)

4 BY MR. GRANT:

5 Q. Ms. VanOrden, is this the -- I've

6 handed you what's been marked as complainant's

7 Exhibit C, is this the inspection report that you

8 wrote subsequent to the May 23, 2000 inspection?

9 A. Yes, it is.

10 Q. Based on your previous inspection of

11 the facility and comparison of the photographs that

12 you took on the July 7, 1999 inspection and the

13 notes that you made, was there any evidence on

14 May 23, 2000 that any waste from the principal waste

15 pile, and I'm referring to the construction

16 demolition debris at the site, was there any

17 evidence that any of that had been removed?

18 A. No, there was not.

19 Q. Did it appear to you to be

20 approximately the same amount of waste?

21 A. Yes, it did.

22 Q. Was there any evidence that any

23 additional waste had been brought to the site at

24 your visit on May 23, 2000?

1 A. The road leading to the site, to the

2 locked gates, there was dumping observed on the

3 east side of the road. It looked like more C and D

4 material.

5 Q. Is it accurate to say that there was

6 additional construction demolition debris brought

7 and placed in a separate pile?

8 A. Yes, there was.

9 Q. And that the original pile appeared to

10 be pretty much the same as you'd seen it in July of

11 1999?

12 A. Yes, it was.

13 Q. When you were -- and during your

14 inspection in May of 2000, were the used and waste

15 tires still present at the site?

16 A. That I could not confirm because the

17 gates were locked and I could not get to the back of

18 the property where the tires were located.

19 Q. Did you again visit the site on

20 June 19, 2001?

21 A. Yes, I did.

22 Q. Based on your previous inspections

23 including your reports and the photographs that you

24 took, did it appear that any of the waste had been

1 removed from the site?

2 A. No, it did not.

3 Q. Did the respondents eventually begin

4 to remove waste from the site?

5 A. Yes, they did.

6 Q. Can you tell us about what time that

7 was?

8 A. I believe it was January. I've been

9 going there every month, so it's hard for me to --

10 is it January?

11 Q. You know, I don't have it. January

12 of --

13 A. 2002.

14 Q. So to the best of your knowledge, from

15 July 7, 1999 until January of 2002, none of the

16 construction demolition debris had been removed from

17 the site?

18 A. No, it was not.

19 Q. Once the respondent began removing the

20 debris, do you know where the debris was taken?

21 A. Yes, it was taken to Congress Landfill

22 in Hillside, Illinois.

23 Q. And how did you come to find that out?

24 A. I've been working with the manager of

1 Congress Landfill. He's been working with

2 Jim Fergelic for the removal of the wood waste and

3 also the remaining C and D waste.

4 Q. And who's the manager of --

5 A. Jim Butler for Congress Development.

6 Q. Now, have either Mr. Butler or

7 Mr. Fergelic explained to you or described to you or

8 indicated to you in any way why the waste has not

9 been removed more quickly from the site?

10 A. There was more waste being removed

11 during the winter months when their workload was

12 less, J & F Hauling's. As the spring and summer

13 started, they were doing more of their regular

14 operations, so it sort of slowed down. They're

15 hoping now that the winter months are coming up they

16 can once again pick up and do more removal.

17 Q. And how did you learn that?

18 A. Just from speaking to Jim Butler and

19 information communicated to him from Jim Fergelic.

20 Q. But your testimony is essentially that

21 the waste is being removed as it's convenient for

22 J & F Hauling Company to -- for the use of their

23 vehicles and that they're doing it when it's

24 convenient for them to remove the waste?

1 A. Yes, they are.

2 Q. Okay, thank you.

3 And you began monthly inspections

4 I think you stated in January of this year?

5 A. January, December.

6 Q. Did you inspect the site on

7 August 27, 2002?

8 A. Yes, I did.

9 Q. When you inspected the site in

10 August of this year, were the used and waste tires

11 still present at the site?

12 A. No, they were removed.

13 Q. They were moved on August 27?

14 A. Yes.

15 Q. Do you know approximately when they

16 were removed?

17 A. No, I'm not sure.

18 Q. At any inspections during the year

19 this year, did you notice the used and waste tires?

20 A. Yes, they were continually there, and

21 I had reminded them that because of the concern with

22 the virus, the West Nile Virus and the regulations,

23 they need to remove those tires as soon as possible.

24 And this was reminded to them several times on the

1 monthly visits. And, finally, they did remove it.

2 Q. But that was done sometime this year?

3 A. Yes.

4 Q. Do you have any recollection what

5 month that might have been?

6 A. I know when I was out there in

7 September they were removed.

8 Q. Based on a comparison of your July 7,

9 1999 inspection, the subsequent inspections

10 including your reports and the photographs that you

11 took at the site, during that time, do you have

12 any -- well, let me back up a little bit.

13 I believe your last inspection at

14 the site was September 24, 2002?

15 A. Yes.

16 Q. Based on what you saw on

17 September 24, 2002, comparing it to your inspection

18 report from July 7, 1999, are you able to estimate

19 the percentage of construction demolition waste

20 that's still present at the site?

21 A. About half of it is still there.

22 Q. Then it's your estimate that at a

23 minimum, at least 800 cubic yards of construction

24 demolition debris is present at the site?

1 A. Yes, at least.

2 Q. Is the stained soil still present at

3 the site?

4 A. It's still present there.

5 Q. Is there any evidence that anyone has

6 ever tried to remove it, remove the soil or

7 characterize the soil?

8 A. No, there isn't.

9 Q. Have any sample results from testing

10 of that soil ever been submitted to Illinois EPA?

11 A. No, it has not.

12 MR. GRANT: Mr. Halloran, I have

13 what's marked as Complainant's Exhibit D.

14 (Document tendered

15 to the witness.)

16 BY MR. GRANT:

17 Q. Ms. VanOrden, is this a copy of the

18 inspection report that you generated after your

19 inspection on September 24?

20 A. Yes, it is.

21 Q. And if you'd look -- I believe

22 there's photographs attached to the back of it?

23 A. Yes.

24 Q. Did you take those photographs at your

1 inspection on September 24, 2002?

2 A. Yes, I did.

3 Q. Okay, thank you.

4 MR. GRANT: That's all the questions I

5 have of this witness. Mr. Halloran, I have two

6 subsequent exhibits.

7 MR. HEARING OFFICER: You may step

8 down, so to speak. Thank you, Ms. VanOrden.

9 MR. GRANT: Mr. Halloran, I have what

10 are marked Exhibits E and F.

11 Mr. Halloran, these are consent

12 orders from two previous enforcement actions made by

13 our office for violations of the Environmental

14 Protection Act.

15 Specifically, they're People

16 versus J & F Hauling Company, Inc. It's

17 95 CH 5775 in the Circuit Court of Cook County.

18 It's a consent order that was entered on

19 July 17, 1997.

20 The second is a consent order

21 issued in People versus J & F Hauling Company, Inc.

22 and James Fergelic. It's numbered 99 CH 5244. This

23 is a consent order that was entered on

24 October 7, 1999.

1 Your Honor, I'm offering these as

2 evidence of previous adjudicated violations of the

3 Act by the respondent. And I note that on the first

4 page of both documents, the documents stipulate that

5 they may be used as evidence of a previous

6 adjudication of the Environmental Protection Act.

7 MR. HEARING OFFICER: Has the

8 respondent paid any of the -- I guess the total

9 $27,000 in penalty?

10 MR. GRANT: The '95 case penalty has

11 been paid. The '99 case penalty was not paid, and

12 an enforcement action for rule to show cause was

13 filed against Mr. Fergelic individually in that

14 case, and I can't remember the date. It was within

15 the previous 12 months.

16 And a second order was entered,

17 and it's my understanding that payments have been

18 made. I can't guaranty -- the order that was

19 entered required payments over a period of time to

20 pay off a total of about 17,500 including interest.

21 And I know the initial payments were made. I can't

22 speak to whether Mr. Fergelic is current on the

23 payments on that.

24 Mr. Halloran, at this point, I move to

1 offer Complainant's Exhibits A through F into

2 evidence.

3 MR. HEARING OFFICER: Exhibits A

4 through F are admitted into evidence.

5 MR. GRANT: Your Honor, that's the

6 balance of my case, but I'd like to make a closing

7 statement.

8 MR. HEARING OFFICER: Sure.

9 MR. GRANT: I'd also like to submit a

10 post-hearing brief in this matter too.

11 MR. HEARING OFFICER: You can do your

12 closing and we'll go off the record and get some

13 dates.

14 MR. GRANT: Your Honor, the State is

15 requesting that the Board pursuant to Sections 42 of

16 the Act assess the civil penalty against the

17 respondent.

18 The Board, in assessing penalties

19 under the Act is guided by the provisions of

20 Sections 33(c) and 42(h). And the State believes

21 that we've submitted sufficient evidence at our

22 hearing today to request the penalty.

23 But the State would like to point

24 to the factors it considers relevant in these

1 sections.

2 Sections 33(c) direct the Board to

3 consider the reasonableness of the pollution source

4 under the circumstances. The respondent operates a

5 demolition business which includes the removal of

6 demolition debris from the location of demolition.

7 Without question, this material was waste material.

8 The respondent chose to deposit

9 this waste not in a permitted landfill, but rather

10 at property it owns and controls in McCook, Illinois

11 within 200 feet of a residential area.

12 The site is boarded on one side by

13 railroad tracks and the other two parcels are used

14 for the storage of truck trailers. However,

15 immediately across 47th Street from a largely

16 residential area, we don't know for how long the

17 respondent chose to use the site for waste storage

18 and disposal, but we do know that on the first day

19 the Illinois EPA inspected the site, the respondent

20 had accumulated sufficient waste material to

21 construct a pile at least 1700 cubic yards large.

22 This does not include material

23 removed from the waste for sale of scrap. How many

24 trucks filled with demolished buildings were brought

1 through and to this area to construct this pile?

2 How long would this have continued had Illinois EPA

3 not been alerted to this unpermitted dump site?

4 The State notes the respondent has

5 removed the tires and approximately half of the

6 large waste at the site. However, full compliance

7 will not be achieved until all of the construction

8 and demolition debris is removed from the site and

9 the contaminated areas are declared cleaned.

10 The State maintains that

11 respondent's activities at this location were

12 patently unreasonable. The amount of penalty to be

13 assessed for violations of the Act is guided by the

14 factors listed in 42(h) of the Act. The State will

15 address these factors in turn.

16 As mentioned, the State does not

17 know the date upon which respondent's unpermitted

18 activities began. However, the evidence shows that

19 all of the alleged violations were present on

20 July 7, 1999.

21 The State has shown that all but

22 one have continued at least until September 24,

23 2002, the date of Illinois EPA's last inspection.

24 This represents 1,175 days. The resolved violation

1 representing the open dumping of used and waste

2 tires continued for in determinant period but at

3 least into 2002.

4 The State believes the gravity of

5 respondent's violations to be serious. The handling

6 of waste material once the source of blight-related

7 problems throughout the State of Illinois is highly

8 regulated and managed through Illinois EPA's permit

9 process.

10 Had the respondent obtained proper

11 permits and thereby made its activities known to

12 Illinois EPA, the State, through routine inspection

13 process, would have recognized the growing problems

14 at the site early on and would have prevented the

15 massive accumulation still present at the site.

16 In addition, the State notes the

17 failure of respondent to properly dispose of waste

18 tires until more than three years have passed. The

19 disease vector problems related to the tires have

20 been known for years and have only been reinforced

21 by the introduction of a serious mosquito

22 transmitted disease in Illinois over the past

23 summer.

24 The State notes the recent

1 diligence of the respondent in shipping the

2 accumulated waste material off the site for proper

3 disposal.

4 The State also notes that

5 apparently, in 2001, the respondent stopped bringing

6 new waste to the site. However, the respondent was

7 aware of Illinois EPA's concerns about the site and

8 its own violations at the site for over a year

9 before the State's enforcement action resulted in

10 the respondent's compliance.

11 In addition, the State notes that

12 respondent, to the date of this hearing, has not

13 properly applied for Illinois EPA waste management

14 permits at the site.

15 The State suggested the issues of

16 deterrence in prior adjudicated violations be

17 considered together for simple reason. The prior

18 adjudications did not deter the violations in this

19 case.

20 Prior to the filing of this

21 action, the State had settled two previous cases

22 alleging violations of the Illinois Environmental

23 Protection Act. Both cases, 95 CH 5775 consent

24 order entered on July 17, 1997, and 99 CH 5244

1 consent order entered on October 7, 1999, involved

2 violations of demolition notification provisions

3 incorporated into Section 9.1 of the Act.

4 These standards are borrowed from

5 the asbestos NESHAPs in the Federal Clean Air Act.

6 The prior violations do not involve the disposal of

7 waste. They are, however, closely tied to the

8 demolition business.

9 Respondent's mishandling of

10 construction and demolition debris which resulted in

11 this action is also closely tied to the demolition

12 business. Respondent's prior violations indicate a

13 lack of attention to the requirements of the Act as

14 it relates to its primary business and should be an

15 aggravating factor in the calculation of any

16 penalty.

17 The State notes that the

18 respondent has removed no more than 50 percent of

19 the waste from the site and therefore requests that

20 in addition to a penalty the Board order the

21 respondent to complete removal of all waste from the

22 site within a reasonable period.

23 The State suggests that nine

24 months from the date of its order would constitute a

1 reasonable period in this case. Recognizing the

2 nature of respondent's business, respondent's

3 history of prior violations, and the potential for

4 future violations, the State also requests that the

5 Board order the respondent to cease and assist from

6 future violations of the Act.

7 The Board in its ruling on summary

8 judgment in this case found that the respondent had

9 violated six sections of the Act as well as three

10 sections of the Board waste regulations.

11 Each one of the nine violations

12 subjects the respondent pursuant to Section 42 to

13 penalties of up to $50,000 and additional penalties

14 of $10,000 per day a violation. As previously

15 noted, most violations have continued for 1,175

16 days.

17 However, penalties are imposed to

18 assist in the enforcement of the Act. In this case,

19 the State speaks to compel complete clean up of the

20 site. Although respondent has not participated in

21 this case and has not been amenable to discovery,

22 the State does not believe that respondent has the

23 financial resources to satisfy a large penalty,

24 although otherwise appropriate, and also continue

1 with the clean up of the site.

2 For this reason, the State

3 suggests the penalty of no less than $60,000

4 combined with an enforceable Board order for

5 complete remediation removal at the site would both

6 aid in enforcement and satisfy the requirements of

7 the Act.

8 That's all I've got.

9 MR. HEARING OFFICER: Thank you,

10 Mr. Grant.

11 Before I forget, I'm supposed to

12 make a credibility determination on the witness, and

13 based on my legal experience and judgment, I find

14 there's no credibility issues with the witness in

15 testifying here today.

16 And I also want to note there's no

17 members of the public here. The respondent did not

18 show up. But it's my pleasure -- I note for the

19 record that Rose Marie Cazeau -- it's been awhile --

20 Chief of the Environmental Bureau. I always called

21 you boss, but -- and Mr. Cohen, also with the

22 Attorney General's Office, is here today.

23 We'll go off the record

24 momentarily for a minute to talk about the briefing

1 schedule. Thank you.

2 (Whereupon, a discussion

3 was had off the record.)

4 THE COURT: All right, we're back on

5 the record. We were discussing a post-hearing brief

6 schedule. We've decided that the record will

7 hopefully be ready by October 15.

8 With that, complainant's

9 post-hearing brief is due November 18. The

10 respondent's post-hearing brief is due on

11 December 20, 2002, and complainant's reply, if any,

12 is due January 3. I'm going to set public comment

13 cutoff date to November 1.

14 With that said, thank you.

15 Everybody have a safe trip across the street. Thank

16 you very much.

17 (Which were all the proceedings

18 had in the above-entitled cause

19 on this date.)

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF DUPAGE )

4 I, STACY L. LULIAS, CSR, do hereby

5 state that I am a court reporter doing business in

6 the City of Chicago, County of DuPage, and State of

7 Illinois; that I reported by means of machine

8 shorthand the proceedings held in the foregoing

9 cause, and that the foregoing is a true and correct

10 transcript of my shorthand notes so taken as

11 aforesaid.

14 _____________________

Stacy L. Lulias, CSR

15 Notary Public,

DuPage County, Illinois

SUBSCRIBED AND SWORN TO

17 before me this ___ day

of ________, A.D., 2002.

19 _________________________

Notary Public