AUG 0 62007
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STATE OF ILLINOiS
SIte Code:03 I6485 I03
Pollution Control Boaro
AC: 2007-25
(CDOE No. 06-03-AC)
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Respondent.
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Complainant,
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
v.
1601-1759 EAST 130
th
STREET, LLC,
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
NOTICE OF FILING
TO: Mr. Bradley P. Halloran
Illinois Pollution Control Board
100 West Randolph Street, Suite I 1-500
Chicago, Illinois 6060 I
Ms. Jennifer
A.
Burke
City
of Chicago, Dept. of Law
30 North La Salle Street, Suite 900
Chicago, Illinois 60602
Y
J. LEVINE, P.C.
A
e for Respondent
1601-1759 EAST 130
th
STREET, LLC
PLEASE TAKE NOTICE that we have this day filed with the Clerk
ofthe Illinois Pollution
Control Board, Respondent's Post-Hearing
ief and Motion
for Leave to File Post-Hearing
Brief Instanter. Dated at Chicago, Illinois, thi th day of August, 2
Jeffrey
J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
PROOF OF SERVICE
The undersigned, being first duly sworn on oath, deposes and says that he served a copy of
the Notice together with the above mentioned documents to the person to whom said Notice is
directed by hand delivery, this 6
th
day of Augu
2007.
AUG
062007
Site Code:03 I6485 I
O~
STATE OF ILLINOIS
AC: 2007-25
ollutlon Control Board
(CDOE No.06-03-AC)
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Complainant,
Respondent.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
v.
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
1601-1759 EAST 130
th
STREET, LLC,
MOTION FOR LEAVE TO FILE POST-HEARING BRIEF INSTANTER
Now comes the Respondent, 1601-1759 EAST 130
th
STREET, LLC, by and through its
counsel Jeffrey
J. Levine, P.c., and for its Motion for Leave to File Post-Hearing BriefInstanter,
states and asserts as follows:
I. Respondent'sbriefwas due on Friday, August 3, 2007, and counsel for Respondent sought
to complete and file all pleadings in all the related matters by that date.
3. Counsel could not complete all pleadings by that date, as he was required to prosecute for
a municipality
on Friday afternoon. Said counsel did not wish to file the pleadings in part.
Respondent therefore seeks to file his Post-Hearing Brief and the related pleadings instanter.
4. Counsel for Complainant has no objection to the instant Motion as long as adequate time
for the filing
of the Reply is provided.
Wherefore, for the above and forgoing reasons, Respondent 1601-1759 EAST 130
th
STREET, LLC, prays that it be granted leave to file its Post-Hearing Brief and other pleadings
instanter and for such further relief as is just and equitable.
Jeffrey
1.
Levine, P.c. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
e . Levine,
P.c.
Att
e for Respondent
1601-1759 EAST 130
th
STREET, LLC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
v.
1601-1759 EAST 130
1h
STREET, LLC,
Respondent.
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Site Code:03164851 03
AC: 2007- 25
(CDOE No. 06-01-AC)
RECEIVED
CLERK'S OFFICE
AUG 062007
STATE OF ILLINOIS
Pollution Control Board
1601-1759 EAST 130" STREET, LLC'S POST HEARING BRIEF
Now comes the Respondent, 1601-1759 EAST 130
1h
STREET, LLC, by and through its
counsel Jeffrey
J. Levine, P.C., and for its Post-Hearing Brief, states and asserts as follows:
Introduction
l.
Respondent 1601-1759 EAST 130
th
STREET, LLC, is a corporation owned by Jose R.
Gonzalez who works as a minority contractor in Chicago. He runs Speedy Gonzalez Landscaping,
Inc., and has acquired an interest in property located at 1601-1759 East 130
th
Street. When he
acquired the property is was loaded withjunk. The waste was an issue in purchase negotiations. May
17,2007, Tr. 102. The property sits next to the
cm
landfill. He seeks to develop the property, build
buildings on the land and lease the property to the Ford Motor Company. May 17,2007, Tr. 102. He
has already performed extensive testing
on the property, particularly to determine whether there was
a gas station tank
on the property. Also, tests were performed as to whether the landfill was leaching
waste into the property.
Investigation
2. A field supervisor, Stanley Kaehler testified that he received a complaint regarding the
property and investigated
on October 3, 2006. AC 07-25, May 17,2007, Tr. 9, 15-7. He stated that
the lot was secured with a chain. October 3, 2006. AC 07-25, May 17,2007, Ir. 12. In fact, the
investigation report specifically states that "Speedy has dumped new C and D waste on the site. He
testified that complaints usually don'tidentifY
the owner of the property. AC 07-25, May 17,2007,
Ir. 15-6. Kaehler testified that he didn't know where the debris came from. AC 07-25, May 17,
2007, Ir. 14, Nor was Kaehler whether the Respondent LLC caused or allowed the dumping. AC
07-25, May 17,2007,
Ir. 19. Mr. Kahler agreed that ifthe site was secured, the LLC would not have
caused or allowed the debris to be on the property. AC 07-25, May 17,2007,
Ir. 21.
3. Mr. Kahler also agreed that an owner would be given time to remove debris and the time
given depends upon how much waste is on the site. AC 07-25, May 17,2007,
Ir. 22-3. Mr. Kaehler,
a field supervisor concluded that an entity is responsible whether or not they caused or allowed the
violation and admitted that his opinion was contrary to the statute. AC 07-25, May 17,2007,
Ir.
24.Kahler concluded that because the gate was locked, respondent caused or allowed the dumping.
He stated he had no other evidence
of the violation. AC 07-25, May 17,2007, Ir. 27.
4. Mr. Gonzales denied that he had dumped the debris. He testified that if he dumped
material on his own property, he would
just have to pay another hauler to take it to the dump. He
would be paying double. AC 07-25, May 17,2007, Ir. 38. Mr. Gonzales further stated that the debris
pictured in the complainant'sreport is the same debris from the past violations on March 22, 2006.
AC 07-25, May 17,2007,
Ir. 38-45. He concluded that he was never contacted by the Department
of environment and given time to clean up the debris. He was just given additional violations.
5. For the sake of brevity, Respondent hereby incorporates all arguments made in the Post
Irial Briefs in Cases 2006-039, 2006-040 and 2006-041, and the Motion to Dismiss the Actions, as
though incorporated herein in their entirety.
Complainant'sArgument
6. Complainant's Post-Hearing Brief maintains that respondent caused or allowed open
dumping because his control over the site make him responsible for "causing and allowing open
dumping". However in
IEPA
v.
Cadwallader,
AC 03-13 (lPCB May 20, 2004), the individual did
not remove debris over a two year period and new debris appeared on the property which was not
secured. In this instance, Respondent secured the property and rather than causing or allowing open
dumping, was cleaning refuse when ticketed.
Mr. Gonzalez did not allow waste to remain on his
property. Testimony at the hearing revealed that property owners are allowed time to remove waste.
Rather than asserting the clean-up as a defense, the actions were contrary to proof
of a violation.
7. Complainant'sbriefconstantly refers to "Respondent'sopen dumping" when no evidence
has been demonstrated. The assertion is contrary to the marginal and incompetent investigation
conducted
by the Department of the Environment inspectors and all evidence produced at the
hearing. All evidence demonstrates that Mr. Gonzalez's efforts were directed toward securing the
property from fly-dumpers and cleaning the garbage that was placed on the property by others. The
evidence adduced at the hearing further demonstrates that Department
ofthe Environment inspectors
hindered clean-up efforts and failed to even investigate the entities that actually caused and allowed
the dumping.
Legal argument
8. While the Environmental Protection Act does not require proof of knowledge or intent,
it does not impose strict liability on an alleged polluter.
People
v.
AJ Davinroy Contractors, 249
IlI.App.3d 788, 618 N.E.2d 1282, 1286 (5
th
Dist. 1993);
Phillips Petroleum
v.
Illinois Environmental
Protection Agency,
72 Ill.App.3d 217,390 N.E.2d 620, 623 (2"d Dist. 1979). In that case, the court
found that the record did not indicate sufficient evidence that defendant exercised sufficient control
over the source
of the pollution in such a way to have caused, threatened or allowed the pollution.
9. Similarly, in the instant case, there is no competent evidence that Respondent exercised
sufficient control over the source
of the pollution in such a way to have caused, threatened or
allowed the pollution.
In determining whether alleged polluters have violated the Act, courts look
to whether the alleged polluter exercised sufficient control over the source
of the pollution.
People
v.
A.
J
Davinroy Contractors,
249 Ill.App.3d 788,618 N.E.2d 1282, 1286 (5
th
Dist. 1993);
People
v.
Fiorini,
143 IlI.2d 318, 346, 574 N.E.2d 612, 623 (I991).
10. In instances where others caused the pollution without the landowner's knowledge or
consent, courts look to the record to establish
if the landowner had taken any precautions to prevent
the actions
of others. See:
Perkinson
v,
Pollution Control Board,
187 Ill.App.3d 689, 543 N.E.2d
901 (1989). In this instance, Respondent, a minority contractor, repeatedly secured the property, put
down a gravel road and was in the process
of cleaning the property for purposes of future
development when the investigators stopped the removal
ofdebris and charged Mr. Gonzalez for his
efforts.
II. Respondent maintains that he and his companies were targeted in these matters after
having a confrontation with Complainant's witness, Rafael Maciel. See: Speedy Gonzalez
Landscaping Inc.'sPost Hearing Brief,
AC 2006-039. This is demonstrated by baseless allegations,
the charging
of entities who were not the owners of the property, a biased and incomplete
investigation and investigation report, discovery abuses and the failure to respond to subpoenas at
hearing. See: Motion to Dismiss Actions.
12. Mr. Gonzalez and his companies are ticketed when cleaning the property, and they are
again ticketed when thy stop cleaning the property. Complainant seeks to impose a "Catch 22" to
repeatedly ticket and
fine him for obtaining property in the City of Chicago.
Wherefore, for the above and forgoing reasons, Respondent 1601-1759 EAST Both
STREET, LLC prays that the Illinois Pollution Control Board dismiss Complainant'sAdministrative
Citation and for such further relief as it deems just and equitable.
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..===----
Dated: August 6, 2007
Jeffrey
1. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
