BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
JUN 3 0 2008
STATE OF
ILLINOIS
Pollution Control
Board
v.
CITY OF CHICAGO DEPARTMENT
QF ENVIRONMENT,
Complainant,
Site Code:0316485103
AC: 2006-039
(CDOE No. 06-02-AC)
J. LEVINE, P.C.
SPEEDY GONZALEZ LANDSCAPING,
INC.,
Respondents.
NOTICE OF FILING
TO: Mr. Bradley P. Halloran
Ms. Jennifer A. Burke
Illinois Pollution Control Board
City of Chicago, Dept. of Law
100 West Randolph Street, Suite 11-500
30
North La Salle Street, Suite 900
Chicago, Illinois 60601
Chicago, Illinois 60602
PLEASE TAKE NOTICE that we have this day filed with the Clerk of the Illinois Pollution
Control Board, Respondent's
Sur-Reply Brief.
Dated at Chicago, Illinois, this 30th
day of Ju 2008.
Y J. LEVINE, P.C.
for Respondent
GONZALEZ LANDSCAPING, INC.
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 mentione documents to the person to whom said Notice is
directed, this 30 th
day of June, 2008.
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
HECEIVED
CLERK'S
OFFICE
JUN 3 0 2008
STATE OF
ILLINOIS
Pollution Control
Board
v.
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
Site Code:0316485103
AC: 2006-039
(CDOE No. 06-02-AC)
SPEEDY GONZALEZ LANDSCAPING,
INC.,
Respondent.
SPEEDY GONZALEZ LANDSCAPING, INC.'S SUR-REPLY
Now comes the Respondent, SPEEDY GONZALEZ LANDSCAPING, INC., by and
through it's counsel Jeffrey J. Levine, P.C., and for its Sur-Reply, states and asserts as follows:
1.Confronted
with allegations substantiated by no evidence and a likelihood that its witness,
Rafael Maciel, the senior environmental inspector, withheld discovery, sought bribes and committed
perjury at the hearing of the matter, the City of Chicago in its May 13, 2008, Reply Brief, seeks to
ignore its witnesses' testimony, amend the charges and change the law.
2.
The City argues that Respondent is Liable for violations as it was the source of waste and
litter on the site. The investigation conducted by City personnel, revealed from the truck manifests,
that it was the CTA which was the actual source of waste and litter on the site. May 9. 2007, Tr.
32, 49-51, 87.
Tanker Truck
3.
The City devotes two pages to its argument that a tanker truck, being stored on the site,
formerly owned by Respondent, was a "significant piece of waste and litter." The city concedes in
its Reply that there was no evidence presented that Respondent SPEEDY GONZALEZ
LANDSCAPING, INC., presently owns the tanker truck. In fact, the only connection to Respondent
to the site is Respondent's name on the side of the tanker. The City had argued that the tanker and
a flatbed truck demonstrated this Respondents access and control over the site. See: Complainant's
Post Hearing Brief at p. 4.
4.
The argument made by the City is in direct contrast to the city's main witness, investigator
Rafael Maciel. That witness specifically testified under oath at his deposition that the tanker truck
on the site was not a violation. See: Macial's 12/06/06 Deposition at p. 148, attached hereto as
Exhibit A. Under any minimal due process requirements, a defendant is allowed to know the claim
made against him so that he may defend against said claim.
5.
The tanker truck is not a violation. The Complainant's witness testified under oath that the
truck was not a violation. The City's argument that the truck constitutes a violation is contrary to it's
own witness and the evidence it presented throughout the discovery process as well as at hearing.
6.
While Mr. Gonzalez expresses his intentions as to the tanker, the City attributes these
intentions to the Respondent SPEEDY GONZALEZ LANDSCAPING, INC., the entity that use to
own the tanker. Further, during his testimony Mr. Macial referred to the Respondent as "he" and
mistook the corporate entity as Mr. Gonzalez. May 9. 2007, Tr. 68 (line 6) 130 (line 7). Macial
agreed that, other than the tanker, the only connection that the Respondent landscape company had
to the property was the presence of Mr. Gonzalez. May 9. 2007, Tr. 99, 153
7.
The alleged violations against Respondent SPEEDY GONZALEZ LANDSCAPING, INC.,
also contained baseless allegations regarding securing the property, salt unloading operations, ACM
or asbestos, waste next to residential homes and oil flowing into the sewer. May 9. 2007, Tr. 68, 129-
32. Macial, a senior environmental inspector (May 9. 2007, Tr. 7), contended that these charges
were put into his investigative report because Respondent Speedy Gonzalez Landscaping, Inc.,
committed the additional offenses (May 9. 2007, Tr. 130). Macial however had no evidence that the
offenses occurred. May 9, 2007, Tr. 68, 129-32. Mr. Maciel concluded that he had "no idea" why
the violations were charged when there was no basis for them. May 9. 2007, Tr. 132.
8.
Maciel concluded that he had no knowledge or information whether Respondent Speedy
Gonzalez Landscaping, Inc., caused or allowed any of the alleged violations. May 9. 2007, Tr. 41-2,
152-55. Respondent contends that these baseless charges were a result of Respondents refusal to
"work out" the violations.
9.
Unlike the authority offered by the City, the truck cannot be considered an abandoned
vehicle which has been discarded improperly which would catagorize it as litter or waste. In
County
ofSangamon v. Daily,
AC 01-16 (IPCB Jan. 10, 2002), respondent argued that he had expressed an
intention to use every single discarded item on his property. The evidence revealed however, that
"the items were clearly not stored in such a way as to protect their future use." The vehicle was not
surrounded by high vegetation. See:
IEPA v. Gruen,
AC 06-49, (IPCB Jan. 24, 2008). Gruen also
admitted that the truck beds and debris therein and a boat were `unuseable' therefore constituting
waste. No evidence was presented regarding the storage of the tanker. The City's authority holds that
for items to be waste they must be stored in such a way as to protect any future use. Finally, the City
concedes that there is no evidence that Respondent ("the former owner of the tanker") is the current
owner of the tanker.
10.
The City also has failed to demonstrate that Respondent had the capability of control of
the premises or was in control of the premises where the pollution occurred.
IEPA v. Cadwaller,
AC
03-13 (IPCB May 20, 2004), quoting
People v. A. I. Davinroy Contractors,
249 Ill.App.3d 788,
793-96, 618 N.E. 2d 1282, 1286-88 (5
th
Dist. 1993). The City's Reply brief implies that access to
a property equates to control over said property. Such a result would hold all citizens responsible for
any garbage dumped in City parks.
Landscape Waste
11.The
Complainant's witness denied that Respondent caused or allowed any of the alleged
violations. Mr. Macial testified that the waste material originated from the CTA. May 9, 2007, Tr.
25. With this solid foundation, the City now argues that Respondent's access to the site qualifies as
control and that Respondent was the likely source or generator of materials as they are "commonly
used in the landscaping industry." The City concludes that this "supports a conclusion that waste and
litter on the site were discarded there by Respondent."
12.
The City's witness withheld information such as business cards and field notes. May 9,
2007, Tr. 53, 59. He testified that he only provided selective information at his deposition. May 9,
2007, Tr.118. He determined that the waste and litter was from the CTA. May 9, 2007, Tr. 25.
Absent any evidence, the City, rather than gracefully dismissing the charges, seeks to hold
Respondent responsible for what is literally its own mess.
13.No
waste or litter is directly attributable to the Respondent. Mr. Macial determined that
other uncharged entities were responsible for the waste and litter. Rather than causing or allowing
the litter, the City found that the CTA's mess was being cleaned and removed from the site, yet
Macial lied under oath as to the actions of the trucks. May 9, 2007, Tr. 160. This cleanup was not
presented as a defense but rather evidence that the waste was neither caused or allowed by the owner
of the land. Macial testified that in other cases he allows time to clean the waste. May 9, 2007, Tr.
159-60, 168.
14. The City is seeking to justify the actions of Mr. Macial who offered to "work out" the
alleged violations and threatened a loss of future City contracts. May 9, 2007, Tr. 126-27, 204. The
City has the burden of proof in these hearings. 415 ILCS 5/31.1(d)(2)(2004); 35 Ill. Admn. Code
108.400. With a witness such as Macial, it cannot meet its burden.
ly Submitted,
J. Levine, P.C.
A y for Respondent
Spe Gonzalez Landscaping, Inc.
Wherefore, for the above and forgoing reasons, Respondent Speedy Gonzalez Landscaping,
Inc., prays that the Illinois Pollution Control Board dismiss Complainant's Administrative Citation
and for such further relief as it deems just and equitable.
Dated: June 30, 2008
Jeffrey J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
DEPOSITION OF RAFAEL MACIEL
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1
2
3
CITY OF CHICAGO DEPARTMENT ?
)
OF ENVIRONMENT,
4
Complainant,
V
S.
?
AC 06-39
5
(CDOE No.?06-02--AC)
SPEEDY GONZALEZ LANDSCAPING,
6
INC.,
Respondent.
7
CITY OF CHICAGO DEPARTMENT
8
OF ENVIRONMENT,
Complainant,
vs.?
AC 06-40
(CDOE No. 06-03--AC)
9
10
JOSE R. GONZALEZ,
Respondent.
11
CITY OF CHICAGO DEPARTMENT
12
OF ENVIRONMENT,
Complainant,
13
VS.
?
AC 06-41
(CDOE No.?06-01--AC)
14
1601-1759 EAST 130th STREET,
L.L.C.,
15
Respondent.
16
17
The deposition of RAFAEL MACIEL, taken before
18
Sharon Valli, Certified Shorthand Reporter and Notary
Public, taken pursuant to the rules governing the
19
Illinois Pollution Control Board pertaining to the taking
of depositions for, the purpose of discovery at
?20 North
20
Clark Street,?
Suite 800, Chicago,?
Illinois,
?commencing at
2:14 p.m.?
on the 6th of December, ?
A.D.,
?
2006.
21
22
23
24
ORIGINAL
INDEX
WITNESS
?
PAGE
RAFAEL MACIEL
Examination by Hr. Levine ? ?
4
EXHIBITS
DEPOSITION EXHIBIT
?
PAGE
Exhibit A
?
?
32
Exhibit B
?
?24
Exhibit C ?
?
88
Exhibit D
?
?
142
(Exhibits retained by Mr. Levine by
agreement of counsel.)
2
1?
APPEARANCES:
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
4
1
?MR.
LEVINE: Let the record reflect that this is the
2 discovery deposition of -- Could you please state your
3 name?
4
?THE
WITNESS: Rafael Maciel.
5
?MR.
LEVINE: Maciel?
6
?THE
WITNESS: Yes.
7
?MR.
LEVINE: (Continuing.) Maciel taken pursuant
8 to a notice out -- because I will send a notice out --
9 pursuant to a notice that will be sent out at some point
10 in three different cases. And the cases are: City of
11 Chicago Department of Environment vs. Jose Gonzalez --
12
?
Which number do you go by, the top one?
13
?
MS. BURKE: Mm-hmm.
14
?
MR. LEVINE: (Continuing.) -- AC 06-40; City of
15 Chicago Department of Environment vs. Speedy Gonzalez
16 Landscaping, Incorporated, Case No. AC 06-39; and City of
17 Chicago Department of Environment vs. 1601-1759 East
18
130th Street, L.L.C., Case No. AC 06-41.
19
?
Will you please swear the witness?
20
?
(Witness sworn.)
21
WHEREUPON:
22
?
RAFAEL MACIEL,
23
called as a witness herein, having been first duly sworn,
24
was examined and testified as follows:
CITY OF CHICAGO, DEPARTMENT OF LAW
MS. JENNIFER BURKE
MR. GRAHAM G. McCAHAN
30 North LaSalle Street
Room 900
Chicago, Illinois 60602
Phone: (312) 742-3990; (312) 744-1438
On behalf of the Complainant;
JEFFREY J. LEVINE, P.C.
MR. JEFFREY J. LEVINE
20 North Clark Street
Suite 800
Chicago, Illinois 60602
Phone: (312) 372-4600
On behalf of the Respondent.
JENSEN REPORTING (312) 236-6936
?
Sheet 1 of 3
148
1?
Q. Okay. The compost pile, do you know whether --
2
do you have any information whether any defendant caused
3 or allowed the placement of that compost pile on the
4 yard?
5
?
A. To my knowledge, no.
6
?
Q. With regard to the
estim
?
with possible
7 arsenic -- not arsenic. Is it creosote?
8?
A. Yes.
9?
Q.
,
Do
you haveany knowledge whether or not
any
10 deferidaritcauied Or allowed -the .inaterial tO Abe.'placed:in'
11 -tbè.,yrd?.
12
13
?
A.
TR
Y?
M
4PwledgP,:r1P.
Q. You list 50 waste tires. Do
you
14
.
.
1.1efi
4lia
-
ge:Wheth
61-;-anY
.
-defertiant:6aUSed-or •allcilked
th e
15 rtiaterjet. tO be-rpla00.(110
:
thelyard? '"
16?
A. To my knowledp,,,p9,..,
17
?
Q. Now, there's a dump truck, a tanker truck, and
18 a flatbed parked and labeled on-site. Is that a
19 violation?
20
A. Is that a violation?
21
Q.
Yeah.
22
A. No.
23
Q. No. Okay. That's just parked trucks?
24
A.
Yes.
rn,1-.1-
22
23
24
145
handwriting on it. Is that part of your --
MS. BURKE: I think it's on there.
THE WITNESS: It's on there.
?
4?
MR. LEVINE: Is it?
MS. BURKE: Exhibit B.
THE WITNESS: Right.
7
BY MR. LEVINE:
?
8?
Q. Oh, I'm sorry. Yeah. Directing your attention
9
to Exhibit B, page 2, marked as 7 at the bottom, is that
your signature on the bottom?
A. It is, correct.
Q. And did you complete the report?
A. The report was completed by -- with myself and
.14 Christopher Antonopoulos.
?
-15
?
Q. And was the investigation ever completed?
?
16?
A. The investigation was completed? No.
?
17?
Q. Okay. What needed to be done with the
18 investigation as far as you know?
?
9
?
A. Well, we had to find out exactly where the
20
material -- who was going to dispose of the material, how
21 it was going to be disposed of, who were the responsible
parties for the material being there. I mean, there was
so many different angles before we could finish off the
investigation, subsequently, close it out.
146
Q.
Was that completed at some time?
A.
To my knowledge, no. I have no idea.
Q.
Who would have been responsible for completing
.4 the investigation?
5?
A. My supervisor, Stanley Kaehler. You have John
6 Kryl, who is director of inspection.
Q. How about Chris?
A. Well, Chris was just-an investigator just like
me.
So ...
10
?
Q. With regard to the site conditions, I'm going
11 to go through a couple of things. The stone piles, that
12 was the clean stone?
la?
A.
I have no idea.
Q. Those were the piles listed in --
A. Yeah. I would say yea, it is.
Q. Okay. And do you know whether those were
17 pollution or waste?
41'?
A. I wouldn't say that they were.
19:
?
Q. With
regard to the debris piles, the debris
20:
,
piles, I'm assuming, are the small piles all around the
edges of the berm, correct?
A. Correct.
3?
Q. And you stated you had no information whether
4- any defendant caused or allowed those piles to be placed
147
1 there, correct?
?
2
?
A. Correct.
?
3?
Q. With regard to the suspected CTA material which
4 you later learned to be the CTA material ...
?
5?
A. Yeah. We still haven't -- To my knowledge, I
6 have no idea if it was still CTA material.
?
7?
Q.
Well, you previously testified that it was from
8 the CTA, correct?
?
9?
MS. BURKE: No, he did not. That is
10 mischaracterizing his testimony. I object.
11 BY MR. LEVINE:
?
12?
Q. Did
you subsequently learn from talking to
13 people and.checking manifests that this material came
14 from the CTA Brown Line?
?
15
?
A. Like I said, during the process of my
16
investigation, there was so many clashing stories. The
17
people, as far as the drivers and operators there, they
18
told me the material was coming from a CTA project.
19 Chuck
Webber had stated at first that it was from a CTA'
20
project. And then you had Paschen who rebutted that and
21
said that material was not from the CTA project.
?
22?
Q. Does anyone know at the City of Chicago where
23 the material is from?
?
24?
A. To my knowledge, I have no idea.
cl
E
NSEN REPORTING (312) 236-6936
Sheet 37 of 39