J
J. LEVINE, P.C.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Complainant,
v.
JOSE R. GONZALEZ,
Respondent.
RECEIVED
CLERK'S OFFICE
JUN 3 0 2008
STATE OF
ILLINOIS
Pollution Control
Board
CITY OF CHICAGO DEPARTMENT )
OF ENVIRONMENT,
Site Code:0316485103
AC: 2006-040
(CDOE No. 06-03-AC)
NOTICE OF FILING
TO: Mr. Bradley P. Halloran
Ms. Jennifer A. Burke, Senior Counsel
Illinois Pollution Control Board
City of Chicago, Dept. of Environment
100 West Randolph Street, Suite 11-500
30
North La Salle Street, 9th Floor
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 Br'
Dated at Chicago, Illinois, this 30th
day of J 20
Y J. LEVINE, P.C.
y for Respondent
. GONZALEZ
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 mention ocuments
to the person to whom said Notice is
directed by hand delivery, this 30
th day of J 108.
A
JO
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
)
RECEIVED
CLERK'S
OFFICE
OF ENVIRONMENT,
Complainant,
)
)
)
Site Code:0316485103
AC: 2006-040
juN 3 0 2008
STATE OF
ILLINOIS
Pollution Control Boarc
v.
)
(CDOE No. 06-03-AC)
JOSE R. GONZALEZ,
Respondent.
)
)
JOSE R. GONZALEZ'S SUR-REPLY
Now comes the Respondent, JOSE R. GONZALEZ, by and through it's counsel Jeffrey J.
Levine, P.C., and for his Sur-Reply, states and asserts as follows:
1.
In their May 13, 2008, Reply Brief, the City contends that the evidence and testimony at
hearing demonstrated violations. Respondent contends that contrary to the City's position, the
evidence and testimony demonstrated 1) an ineffective investigation, 2) selective prosecution, 3)
false testimony, 4) an utter contempt for the process which included a failure to provide discovery
and providing selective information, 5) complaints against entities with no basis, 6) false allegations,
and 7) evidence that Complainant's witness, Investigator Macial, was seeking a bribe.
2.
The central question was whether Respondent, Jose Gonzalez, an individual who is not
the actual owner of the property in question (Mr. Gonzalez controls the LLC that owns the property),
had caused or allowed the waste and whether the alleged violation resulted from uncontrollable
circumstances. The City has the burden of proof in these hearings. 415 ILCS 5/31.1(d)(2)(2004); 35
Ill.
Admn. Code 108.400.
Ineffective Investigation
3.The
investigation performed by Complainant's witness indicated a secure property wherein
trucks from E. King Trucking, a subcontractor to Paschen Construction, were cleaning waste from
the CTA which had been deposited on the property in question, contrary to an agreement to keep the
waste in containers. Also evident were indications of fly dumping.
4.
The investigator testified that he stopped trucks removing material from the site (May 9,
2007, Tr. 46), that the investigation was complete (May 9, 2007, Tr. 50), and that he would have
conducted a further investigation. See: May 9, 2007, Tr. 45-62.
Selective Prosecution
5.
Neither the CTA, Paschen Construction or E. King Trucking were ever ticketed even
though an adequate investigation would have revealed that those entities caused and allowed the
violation.
False Testimony
6.
The City cannot meet its burden because portions of its witnesses testimony is false and
demonstrates an utter disregard for the process. See: May 9, 2007, Tr. 42, 116-24.
Failure to Provide Discovery/Providing Selective Information
7.
The City's witness withheld documents such as business cards and field notes. See: May
9, 2007, Tr. 53, 59, 82-84. He also admitted to failing to disclose information at a deposition as he
did not believe that it was "pertinent." See: May 9, 2007, Tr. 118
Complaints Against Entities with no Basis
8.
Mr. Macial charged Speedy Gonzalez Landscaping, Inc., with violations although he had
no evidence against that entity. See: May 9, 2007, Tr. 99, 130, 132 &153.
False Allegations
9.
The alleged violations against Respondents included 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.
Macial Seeking a Bribe
10.
The evidence at hearing reveal that Mr. Macial was seeking a bribe from Mr. Gonzalez
and the latter's failure to comply resulted in the offenses charged. See: May 9. 2007, Tr. 126-27, 181-
83, 204.
Argument
11.
The evidence presented conclusively demonstrates that Respondent neither caused nor
allowed the waste. The hearing record is replete with testimony that Respondent repeatedly worked
to secure access to the property. An earthen berm was constructed around the property (May 9, 2007,
Tr. 197), and a gated fence was installed at the entrance to the site. May 9, 2007, Tr. 205. The owner
testified that after the property was initially cleaned, the locks on the gate have been cut and
additional fly dumping occurred. The gates have been replaced numerous times and additional gates
have been installed. See: May 9, 2007, Tr. 205. A gate was present on the date of the alleged
violation. May 9, 2007, Tr. 9.
12.
Rather than causing or allowing the waste, the owner has fought fly-dumpers since
acquiring the property which he is developing. See: May 9, 2007, Tr. 173, 199. The owner was in
the process of putting down a gravel road to gain access to the back portion of the property with
heavy equipment when he was ticketed. May 9, 2007, Tr. 187-92.
13.The
inspector testified that Respondent would be given a reasonable time to clean up the
tfully Submitted,
J. Levine, P.C.
A orn y for Respondent
Jos Gonzalez
property "from the date of the inspection." May 9, 2007, Tr. 159.
14.In
IEPA v. Cadwallader,
AC 03-13 (IPCB May 20, 2004), the site had "no fence and was
easily accessible from a heavy trafficked roadway." The City has failed to carry its burden that
Respondent either allowed waste to remain on the property or failed to make repeated efforts to
secure the site to prevent others from dumping waste. Respondent's agent, seeking to develop the
site, repeatedly sought to secure the site, and cleaned up fly-dumped material. When others deposited
waste contrary to an agreement, he organized a massive clean-up which included putting in a stone
road to allow heavy equipment access to other waste.
15.
Complainant has failed to present evidence that Respondent acquiesced in any manner
to the waste deposited by others. The waste deposited by fly-dumpers, who repeatedly cut the lock
on the gate or knocked it down, must be deemed uncontrollable circumstances. The CTA waste
deposited by E. King Trucking (which was supposed too be stored in containers) was removed
within the reasonable time indicated by the City's witness.
Wherefore, for the above and forgoing reasons, Respondent Jose Gonzalez 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, 2007
Jeffrey J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600