AC 07.025
    (Administrative Citation)
    Respondent.
    )
    )
    )
    Complainant, )
    )
    )
    )
    )
    )
    )
    v.
    RECEIVED
    CLERK'S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD JUN 22 2007
    STATE OF ILLINOIS
    Pollution Control Board
    1601.1759 EAST 130
    HI
    STREET, LLC,
    CITY OF CHICAGO DEPARTMENT
    OF ENVIRONMENT,
    NOTICE OF FILING
    TO:
    Jeffrey
    J.
    Levine
    Jeffrey 1. Levine, P.e.
    20 N. Clark St., Suite 800
    Chicago, IL 60602
    Bradley P. Halloran
    Illinois Pollution Control Board
    100
    W. Randolph St., Suite 11.500
    Chicago, IL 6060 I
    PLEASE TAKE NOTICE that
    on
    June 22, 2007, Complainant filed with the Clerk of the
    Illinois Pollution Control Board the attached Post-Hearing Brief, a copy
    of which is
    served upon you.
    ~~
    raham G. McCahan
    . Graham G. McCahan
    Assistant Corporation Counsel
    City
    of Chicago Department of Law
    Aviation, Environmental
    &
    Regulatory Division
    30 N. LaSalle Street, Suite 900
    Chicago,
    1L 60602
    (312) 744.1438
    CERTIFICATE OF SERVICE
    raham G. McCahan
    The undersigned, an attorney. certifies that on June 22, 2007, he caused copies
    of this
    notice and the documents referenced therein to
    be served on the party to whom it is
    directed
    by U.S. Mail, first class postage prepaid.
    ~~--
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    1601-1759 EAST I30
    TH
    STREET, LLC
    CITY
    OF CHICAGO DEPARTMENT
    OF ENVIRONMENT,
    Respondent.
    RECEIVED
    CLERK'S OFFICE
    JUN
    222007
    STATE OF IlliNOIS
    Pollution Control Board
    AC 07-25
    (Administrative Citation)
    )
    )
    )
    Complainant, )
    )
    )
    )
    )
    )
    )
    v.
    CITY O.F CmCAGO'S POST-HEARING BRIEF
    INTRODUCTION
    The City of Chicago Department of Environment ("'eDOE,""Complainant," or
    "Compl.") alleges that 1601-1759 East 130'" Street, LLC ("Respondent") caused or
    allowed open dumping of waste resulting
    in
    litter and the deposition of general
    construction
    or demolition debris in violation of Sections 21 (P)(J) and 21 (P)(7)(i) of the
    Illinois Environmental Protection Act (the "Act").
    4J51LCS 5/21(P)(t) and (7)(i). A
    eDOE inspector observed these violations at 160 I E. 130
    lh
    Street, Chicago, Illinois
    ("Site") during an inspection on October 3, 2006. CampI. Ex. A at 73, 77-78.
    Respondent, an Illinois limited liability company. owned the Site at the time
    afthe
    inspection. Tr. at 35-36.
    ARGUMENT
    A.
    Respondent Caused or AJlowed Open Dumping of Waste in Violation of
    Section 21 (a)
    1.
    Open Dumping Occurred at the Site
    In order to demonstrate that Respondent violated any of the subsections to Section
    21 (p) of the Act, it must first be shown that Respondent violated Section 21 (a) of the Act.
    415 ILCS 5121(P).
    See JEPA v. Shrum,
    AC 05-18 (!pCB Mar. 16,2006). CDOE
    demonstrated at hearing that Respondent caused or allowed open dumping allhe Site in
    violation
    of Section 21(a) of the Act. 415 ILCS 5/2 I(a). "Open dumping" is defined as
    "the consolidation of refuse from one or more sources at a disposal site that does not
    fulfill the requirements
    of a sanitary landfill." 415 JLCS 5/3.305. «Refuse" is "waste,"
    (4151LCS
    5/3.385)
    and "waste" is defined to include "any garbage _.. or other discarded
    material" (415 !LCS 5/3.535).
    The
    eDOE
    inspection report admitted into evidence as Complainant's Exhibit A
    and the testimony at hearing show that broken concrete, asphalt, wood, metal and other
    debris were accumulated in various piles on the Site on
    October 3, 2006. Compl. Ex. A
    at
    73. 77-78; Tr. at 12-13, 30-31, 34, 38-39. Respondent admitted at hearing that in order
    to fulfill the future development plans for the Site, the
    "waste" observed during the
    October 3, 2006 inspection would have to
    be
    removed and disposed of. Tr. at 33-34.
    The fact that Respondent planned to dispose of the materials demonstrates that the
    materials lacked productive
    or re-use value and, therefore, constituted "discarded
    material" within the meaning
    of the term "waste" and, by extension, "refuse" under
    Section
    21 (a) of the Act (4 I5 !LCS 5/21 (a».
    See JEPA v. Carrica,
    AC 04-27 (lPCB
    Sept. 2, 2004);
    JEPA v. Cadwallader.
    AC 03-13 (!pCB May 20, 2004).
    The waste observed on the Site on October 3, 2006 came from one or more off-
    site sources as required under Section
    21 (a) of the Act (4 I5 ILCS 5/2 I(a». Tr. at 14.
    Respondent admitted that the waste observed on
    October 3, 2006 had been fly-dumped
    on the Site. Tr. at 30-32. Because
    the waste observed on the Site on October 3, 2006
    2
    was brought onto the Site from extemallocations, it was "consolidated" on the Site from
    "one or more sources" pursuant to Section 21 (a) of the Act. 415 ILCS 5121 (a).
    The Site does not meet the requirements
    of a sanitary landfill and is not permitted
    as such. Respondent admitted that the lllinois Environmental Protection Agency
    ("IEPA") has not issued a pennit for any operations on the Site. Tr. at 36. Therefore, the
    Site conditions observed on October
    3,2006 fulfill all of the requirements of "open
    dumping" as defined under Section 3.305
    of the Act. 415 ILCS
    5/3.305.
    2.
    Respondent Caused or Allowed Open Dumping on the Site
    Respondent caused or allowed the open dumping observed on October 3, 2006
    because Respondent was the owner of the Site and was thereby able to exercise control
    over the Site
    at that time. Tr. at 35-36. The Board has repeatedly held that a landowner
    can be held liable for "causing
    or allowing" open dumping despite the fact that the
    landowner did not actively participate
    in the dumping.
    See JEPA v. Shrum,
    AC 05-18
    (IPCB Mar. 16,2006);
    IEPA
    v.
    Carrico,
    AC 04-27
    (WCB
    Sep. 2, 2004);
    JEPA
    v.
    Rowe,
    AC 92-5 (IPCB Oct.
    16, 1992). Respondent claimed that fly-dumpers dnmped matenals
    at the Site without Respondent'spennission. Tr. at 30-32. However, a person can cause
    or allow open dumping in violation of the Act without knowledge or intent.
    See County
    ofWill
    v.
    Ulilities Unlimited. Inc.,
    AC 97-41 «(PCB July 24, 1997),
    citing, People
    v.
    Fiorini,
    1431l1.2d 318, 574 N.E.2d 612 (1991). In addition, "passive conduct" on the
    part
    of a landowner can amount to "acquiescence sufficient to find a violation of
    Section 21(a) of the Act."
    IEPA
    v.
    Shrum,
    AC 05-18
    (WCB
    Mar. 16,2006).
    Respondent is liable for causing
    or allowing open dumping because Respondent
    owned the Site and failed to remove waste from the Site. Respondent admitted that some
    3
    ofthe waste observed on the Site on October 3,3006 had been on the Site since the time
    of the CDOE inspection six months prior in late March 2006 and that the waste had been
    there long enough for weeds
    to have sprouted in and around it. Tr. at 38-40, 45.
    Respondent further admitted that additional waste had been dumped
    on the Site at least
    three or four weeks prior to the October
    3, 2006 inspection and that this waste had not
    been removed. Tr.
    at 32-33. The Board has held that a landowner who allows waste to
    remain on its property is liable for open dumping.
    See IEPA v. Sh11lm,
    AC 05-18 (IPCB
    Mar. 16,2006);
    IEPA
    v.
    Cadwallader,
    AC 03-13 (IPCB May 20, 2004). Because
    Respondent was the owner
    of the Site and allowed waste to remain on the Site,
    Respondent should be found liable for causing or allowing open dumping under Section
    21(a)
    ofthe Act. 415 ILCS 512 I(a).
    B.
    Respondent's Open Dumping Resulted in Litter in Violation of Section
    21(P)(1)
    Respondent's causing or allowing open dumping
    of wastes resulted in «litter"
    under Section 21 (p)(I) of the Act. 415 ILCS 5/21 (P)( I). The Act does not define "litter"
    but
    it is defined in the Litter Control Act as:
    «Litter" means any discarded, used or unconsumed substance or waste.
    «Litter" may include, but is not limited to, any garbage, trash, refuse,
    debris, rubbish,
    ... or anything else of an unsightly or unsanitary nature,
    which has been discarded, abandoned or otherwise disposed
    of
    improperly. 4151LCS 105/3(a).
    The Board has previously applied this definition
    of"litter" to open dumping allegations.
    See
    SI. Clair County
    v.
    Louis l. Mund,
    AC 90-64 (lPCB Aug. 22, 1991). Usiog this
    definition, broken concrete, asphalt, wood, metal and other debris found at the Site are
    discarded materials and constitute "litter" under Section 21(p)(I)
    of the Act. Compl. Ex.
    4
    A at 73, 77-78; Tr. at 12-13, 3()"31, 34, 38-39. Accordingly, the Board should find
    Respondent violated Section 21(P)(1).
    c.
    Respondent's Open Dumping Resulted in Deposition of General
    Construction or Demolition Debris
    in
    Violation of Section 21 (P)(7)
    Respondent'sopen dumping of these wastes also resulted in deposition of general
    construction
    or demolition debris in violation of Section 21 (P)(7) of the Act. 415 lLCS
    5121 (p)(7). "GeneraJ construction or demolition debris" is defined in Section 3.160 of the
    Act as:
    [N]on-hazardous,
    uncontaminated
    materials
    resulting
    from
    the
    construction, remodeling, repair, and demolition
    of utilities, struchJres,
    and roads, limited to the following: bricks, concrete, and other masonry
    materials; soil; rock; wood, including non-hazardous painted, treated, and
    coated wood and wood products; wall coverings; plaster; drywall;
    plumbing fixtures; non-asbestos insulation; roofing shingles and other
    roof
    coverings; reclaimed asphalt pavement; glass; plastics that are not sealed
    in a
    manner that conceals waste; electrical wiring and components
    containing no hazardous substances; and piping
    or metals incidental to any
    of those matenaIs. 415ILCS 5/3.160.
    The eDOE inspection report admitted into evidence as Complainant's Exhibit A and the
    testimony at hearing show that materials from construction, remodeling, repair
    or
    demolition activities - such as broken concrete, soil, and asphalt - were present at the Site
    on Octoher 3, 2006. Compl. Ex. A at 73, 77-78; Tr. at
    12-13,30-31,34,38-39. These
    materials constituted
    "open dumping ofwaste in a manner that results in
    deposition
    of general construction or demolition debris" under Section 21 (P)(7)(i) of the Act, and
    therefore, Respondent violated that section
    of the Act.
    CONCLUSION
    The CDOE inspection report, photographs, and testimony show that Respondent
    caused or allowed open dumping
    of waste resulting in litter and the deposition of
    5
    construction or demolition debris in violation of Sections 21 (P)(I) and 2.1 (p)(7)(i) ofthe
    minois Environmental Protection Act. 415 JLCS
    5nl(p)(I) and (P)(7)(i). CDOE
    respectfully requests that the Board enter a final order finding that Respondent violated
    these sections and imposing the statutory penalty of$30oo ($J 500 for each violation).
    Respectfully submitted,
    CJTY OF CHJCAGO
    DEPARTMENT
    OF ENVIRONMENT
    Mara S. Georges, Corporation Counsel
    ::~C{~
    J
    e (erA+Bfke
    Dated: June 22, 2007
    Jennifer
    A.
    Burke
    Graham G. McCahan
    City of Chicago Department of Law
    Aviation, Environmental
    &
    Regulatory Division
    30 N. LaSalle Street, Suite 900
    Chicago,
    JL 60602
    (312) 742-3990 / 744-1438
    6
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