BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
)
OF ENVIRONMENT,
)
)
Complainant, )
)
v.
)
)
SPEEDY GONZALEZ
)
LANDSCAPING, INC.;
JOSE R.
)
GONZALEZ; 1601-1759 EAST
l30
TH
)
STREET, LLC,
)
)
Respondents.
)
NOTICE OF FILING
AC 2006-039
AC 2006-040
AC 2006-041
AC 2007-025
ReCE.V
CLERK'S
OFFI'Ee
D
AUG
I
72007
p~,Tu~~~
g~~~Lo',N80/S
oard
TO: Jeffrey J. Levine
Jeffery
J. Levi ne PC
20
N. Clark St., Suite 800
Chicago, IL 60602
Bradley Halloran
Illinois Polllution Control Board
100
W. Randolph Street
James
R. Thompson Center, #11-500
Chicago,
IL 60601
Jenniler
A. Burke
Senior Counsel
City
of Chicago Department of Law
30 N. LaSalle Street, Suite 900
Chicago,
IL 60602
(312) 742-3990
PLEASE
TAKE NOTICE that on August 17, 2007, City of Chicago filed with the Clerk
of the Illinois Pollution Control Board the attached Motion to Strike Respondents' Motion
to Dismiss Actions, Opposition to Respondents' Renewed Motion to Consolidate, and
Motion to Modify Post-Hearing Briefing Schedule copies
ofwhi
. re served upon you.
~A:B~ Q~
CERTIFICATE OF SERVICE
The undersigned, an attorney, certifies that on August
17,2007 she caused copies of this
notice and the documents referenced herein to be served on the party to whom it
is
directed by U.S. Mail, first class postage prepaid.
.". •..
3
~~~~0th
BEFORE TilE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK's
OFFICE
AUG
I 72007
STATE OF
ILLINOIS
Po/lutron Control Board
AC 2006-03')
AC 2006-040
AC 2006-04 I
AC 2007-025
Respondents,
)
)
)
Complainant, )
)
)
)
)
)
)
)
)
)
v,
SPEEDY GONZALEZ
LANDSCAPING, INC.; JOSE
R.
GONZALEZ; 1601-1759 EAST 130
TII
STREET,
LLC,
CITY OF ClIlCAGO D1'I'ARTMENT
OF ENVIRONMI,NT,
CITY OF CHICAGO'S MOTION TO STRIKE
RESPONDENTS' MOTION TO DISMISS ACTIONS
The City of Chicago Department of Environment ("City"), by its Corporation
Counsel
Mara S, Georges, moves this Board to strike Respondents' Motion to Dismiss
Actions ("Respondents' Motion").
In
support
thereof~
the City states as follows.
I.
Pursuant to Section 101.506
of the Board's rules, the City moves to strike
Respondents' Motion because it (i) is untimely, (ii)
filils to cite any legal authority as a
basis for the motion, and (iii) makes closing arguments which should
be confined to
Respondents'post-hearing brief. Section 101.506
of the Board's rules states,
"[a]1I
motions to strike, dismiss, or challenge the sufficiency of any pleading filed with the
Board must
be filed within 30 days after the service of the challenged document, unless
the Board determines that material prejudice would result." 35
III. Adm. Code 101.506.
In compliance with Section 101.506, the City files its Motion to Strike within 30 days
after the service
of the Respondents' Motion,
2.
Respondents' Motion, titled "Motion to Dismiss Actions," is untimely 3nd
should be stricken bec3use it violates Section 101.506. Under the Board's procedural
rules and the Illinois Code of Civil Procedure, a "Motion to Dismiss" is generally
directed 3t the Ieg31 sullieieney of a complaint or other pleading.
See
35 III. Adm. Code
101.506,735 ILCS 5/2-615, 7351LCS 5/2-619. Respondents' Motion docs not specify
the document that it challenges. However,
if Respondents' Motion is directed at the legal
sufficiency
ofthe City's administrative citation, or any other document tiled by the City
in these proceedings including the City'S post-hearing briefs, then it is not timely under
the 30-day limit imposed by Section 101.506.
3.
Respondents' Motion violates Section 101.504 because it fails to cite 3ny
legal basis for the relief requested. Section 101.504 of the Board's rules states, "[ a]1I
motions and responses must clearly state the grounds upon which the motion is m3de and
must contain a concise statement
ofthe position or rclief sought." 35 Ill. Adm. Code
101.504. Respondents cite no
leg31 authority for their claims in their Motion and thereby
provide no legal basis upon which the City can respond or this Board can make a
decision.
4.
Respondents'Motion simply is a rant
of unsupported legal and factual
argument which is directed at the sufficiency of the City's ease-in-chief as presented at
the hearings. Any such argument directed at whether the City has met its burden
ofproof
under 415 ILCS 5/31.1 (d)(2) -- which the City contends it has met as set forth in its post-
hearing briefs
-- must be made on the record during the hearing or in Respondents' post-
hearing briefs.
See
415 ILCS 5/33 (The Board is authorized to issue IIn31 orders or make
linal detenninations
"atler due consideration ofthe written and oral statements, the
2
testimony and arguments that shall be submitted at the hearing.");
Brill v. LalOria.
PCB
00-219 (Aug. 7, 2003) ("post-hearing
briefs arc to argue from Elets previously admitted
into the record"). Respondents' Motion constitutes closing argument impermissibly
presented as a "motion to dismiss" whieh should
be stricken by the Board.
WHEREFORE, Complainant City
of Chicago respectfully requests that this
Board strike Respondents' Motion to Dismiss Actions as untimely and improper.
If the
Board denies the
City's Motion to Strikc, the City requests that this Board allow the City
lcave to filc a responsc to thc Respondcnts' Motion to Dismiss Actions.
Rcspeetfully submitted,
CITY OF CHICAGO
DEPARTMENT
OF ENVIRONMENT
Mara S. Gcorges, Corporation Counsel
ofthe City of Chicago
~
BY~,
..
/~~
Je mfer A. B rkc
Datcd;
AUh'llst 17,2007
Jcnnifcr A. Burkc
Scnior Counsel
Graham G. McCahan
Assistant Corporation Counsel
City
of Chicago
Departmcnt
of Law
30 N. LaSallc Strcct, Suite 900
Chicago,
IL
60602
(312)
742-3990/744-1438
3
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
)
OF ENVIRONMENT,
)
)
Complainant, )
)
v.
)
)
SPEEDY GONZALEZ
)
LANDSCAPING, INC.; JOSE
R.
)
GONZALEZ; 1601-1759 EAST
I30
TlI
)
STREET, LLC,
)
)
Respondents. )
AC 2006-039
AC 2006-040
AC 2006-041
AC 2007-025
RECEIVED
CLERK'S
OFFICE
AUG I 72007
STATE OF IlU
Pollution
COntrolNe
O/S
Oard
CITY OF CHICAGO'S OPPOSITION TO
RESPONDENTS' RENEWED MOTION TO CONSOLIDATE ACTIONS
The City of Chicago Department of Environment ("City"), by its Corporation
Counsel Mara
S. Georges, opposes Respondent's Renewed Motion to Consolidate
Actions because the motion is untimely and further will delay determination
of thc
pending claims.
On May 9 and May
17,2007, Hearing Officcr Bradlcy Halloran conducted
hearings in the above-captioned mattcrs. The City timely filed its post-hcaring bricfs in
each
of the four matters on June 22, 2007. On July 18,2007, the Hearing Officer granted
Respondents an extension
of time to file their post-hearing response briefs on August 3,
2007. Respondents filed their post-hearing briefs in each
of the four matters on August 6,
2007 and moved instanter for a further extension
of time. Together with the post-hcaring
briefs on each
of the separate administrative citations, Respondcnts filed a motion to
consolidate the four administrative citation proceedings.
As an initial matter, the City notes that Respondents' motion is inaccurately titled
a "renewed" motion. One
of the three Respondents, 1601-1759 East 130'h Street, LLC,
previously moved to consolidate the two matters pending against it -- Administrative
Citation 2006-041 and Administrative Citation 2007-025. 1601-1759 East
130
1h
Street,
LLC
tIled that motion simultaneously with its petition to contest AC 07-025 in the midst
of discovery depositions in the AC 06-041 matter. The City opposed the prior motion to
consolidate because it did not want to delay hearing in the AC 06-041 matter. Neither
1601-1759 East
130
lh
Street, LLC nor the other Respondents ever moved to consolidate
the other matters.
The City opposes consolidating these four matters at this late date
atter the
hearings were completed and
atter the City and Respondents filed their post-hearing
briefs in each
of the four matters. The Board has the authority to consolidate proceedings
for the purpose
of hearing or decision or both. 35111. Adm. Code 101.406. The Board
will consolidate proceedings
if consolidation is in the interest of convenient, expeditious,
and complete determination
of claims, and if consolidation would not cause material
prejudice to any party.
Id.
Consolidating the four matters at this time would not improve efficiency or serve
any of the interests provided in Board Rule 101.406. The hearings were conducted
separately, there are separate transcripts for each hearing, and the parties have filed post-
hearing briefs in each
of the four proceedings. The motion to consolidate is untimely and
would not serve any legitimate purpose. Furthermore, consolidation would cause
material prejudice to the City unless the City is granted leave to re-write each
of its post-
2
hearing briefs to consider testimony and evidence presented in the related proceedings.
Thus, consolidation would unnecessarily delay final determination in these
f"lUr matters.
For the reasons stated herein, the City respectfully requests that the Board deny
Respondent's untimely request to consolidate.
Respectfully submitted,
CITY OF
CHICAGO
DEPARTMENT OF ENVIRONMENT
Mara S. Georges, Corporation Counsel
of the City of Chicago .
RY~~_
Dated: August 17,2007
Jennifer A. Burke
Senior Counsel
Graham G. McCahan
Assistant Corporation Counsel
City
of Chicago
Department
of Law
30 N. LaSalle Street, Suite 900
Chicago,
IL
60602
(312) 742-3990 / 744-1438
3
RECEIVED
CLERK'S OFFICE
AUG 17 2007
AC 2006-039
AC 2006-040
AC 2006-041
AC 2007-025
)
)
Complainant, )
)
)
)
)
)
)
)
Respondents.
)
v.
SPEEDY GONZALEZ
LANDSCAPING, INC.; JOSE
R.
GONZALEZ; 1601-1759 EAST 130
TH
STREET, LLC,
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
CITY OF
CHICAGO'S
MOTION TO MODIFY
POST-HEARING
BRIEFING SCHEDULE
The City of Chicago Department of Environment ("City"), by its Corporation
Counsel Mara
S. Georges, moves to modify the post-hearing briefing schedule and in
support of its motion states as follows:
I.
On May 9 and May 17,2007, Hearing Officer Bradley Halloran conducted
hearings in the above-captioned matters.
2.
The City filed its post-hearing briefs on June 22,2007.
3.
On July 18, 2007, the Hearing Officer granted Respondents an extension
of time to file their Post-Hearing Response Briefs on August 3, 2007. Respondents filed
their post-hearing briefs on August 6, 2007. On August 6, 2007, Respondents also filed
their Motion to Dismiss Actions and Renewed Motion to Consolidate Actions.
4.
The City'sreplies to Respondents' post-hearing briefs are due on either
August
17 or August 20, depending on whether the Board or the Hearing Officer grants
Respondents' second motion for extension
of time filed instanter with their briefs.
5.
The
City moved to strike Respondents'Motion to Dismiss Actions and
opposed Respondents' Renewed Motion to Consolidate Actions because they arc
untimely and violate the Board's procedural rules.
See
City's Motion to Strike
Respondents' Motion to Dismiss Actions
and City's Opposition to Respondents' Renewed
Motion to Consolidate Actions
filed together with this motion.
6.
The outcome of these three pending motions will impact how the City
prepares its post-hearing reply briefs in these four administrative citation proceedings.
Therefore, the City cannot prepare its post-hearing reply briefs until the Board decides
the various pending motions.
In the interests of fairness and judicial economy, and
pursuant to Board Rule 101.522, the City requests an extension
of time to tile its post-
hearing reply briefs in each
of the above-captioned matters to 21 days after the Board
issues orders on the three pending motions.
WHEREFORE, the City
of Chicago respectfully requests that the Hearing Officer
grant its motion to modify the post-hearing briefing schedule as set forth above.
Respectfully submitted,
CITY OF CHICAGO
DEPARTMENT OF ENVIRONMENT
Mara
S. Georges, Corporation Counsel
BY:1n~ma~
JIlnifuA\;rke
Dated: August 17,2007
Jennifer A. Burke
Senior Counsel
Graham G. McCahan
Assistant Corporation Counsel
City
of Chicago
Department of Law
30 N. LaSalle Street, Suite 900
Chicago,
IL 60602
(312) 742-3990 /
744-1438