BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1601-1759 EAST BOTH STREET, LLC,
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
. Respondent.
RECEIVED
CLERK'S OFFICE
JUN 222007
STATE OF ILLINOIS
Pollution Control Board
AC 06-041
(Administrative Citation)
)
)
)
Complainant, )
)
)
)
)
)
)
v.
NOTICE OF FILING
TO: Jeffrey J. Levine
Jeffrey
J. Levine, P.C.
20 N. Clark
St., Suite 800
Chicago,
It 60602
Bradley P. Halloran
Illinois Pollution Control Board
100
W. Randolph St., Suite 11-500
Chicago, IL 60601
PLEASE TAKE NOTICE that on June 22,2007, Complainant filed with the Clerk
ofthe
Illinois Pollution Control Board the attached Post-Hearing Brief, a copy of which is
served upon you.
~.
7J1~
Graham G. McCahan
Graham
G. McCahan
Assistant Corporation Counsel
City
of Chicago Department of Law
Aviation, Environmental
&
Regulatory Division
30N.LaSalle Street, Suite 900
Chicago, IL 60602
(312) 744-1438
CERTIFICATE OF SERVICE
Gra am G. McCahan
The undersigned,an attorney, certifies that on June 22, 2007, he caused copies
ofthis
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.
~-~
1601-1759 EAST l30
TH
STREET, LLC
Respondent
)
)
)
Complainant, )
)
)
)
)
)
)
v.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD R
I:::::-
",CE'VED
CLERK'S
OFFICE
JUN 222007
pSTATE
OF
ILLINOIS
AC 06-41
ollut,on Control
Board
(Administrative Citation)
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
CITY OF CHICAGO'S POST-HEARING BRIEF
INTRODUCTION
The City of Chicago Department of Environment ("CDOE," "Complainant," or
"'CompI.") alleges that 1601-1759 Eastl30
th
Street, LLC ("Respondent") caused or
allowed open dumping ofwaste resulting in litter, scavenging, open burning, deposition
ofwaste in standing water, and the deposition of general construction or demolition
debris in violation
of Sections 21 (p)(l), 21 (P)(2), 21 (p)(3), 21 (p)(4), and 21 (P)(7)(i) of
the Illinois Environmental Protection Act (the "'Act"). 415 ILCS 5/21(p)(1), (2), (3), (4),
and (7)(i). CDOE inspectors observed these violations at 1601
E. l30
th
Street, Chicago,
Illinois
("'Site") during an inspection on March 22, 2006. CompI. Ex. A at 6-22.
Respondent, an Illinois limited liability company, owned the Site at the time
ofthe
inspection. CompI. Ex.
B;Tr.
at 67-68.
ARGUMENT.
A.
Respondent Caused or Allowed 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 ofthe subsections to Section
21 (P) of the Act, it must first be shown that Respondent violated Section 21 (a) ofthe Act.
415 ILCS
5/21(p). See IEPA
v.
Shrum,
AC 05-18 (IPCB Mar. 16,2006). CDOE
demonstrated at hearing that Respondent caused or allowed open dumping at the Site in
violation
of Section 21(a) of the Act. 415 ILCS 5/21 (a). "Open dumping" is defined as
"the consolidation
ofrefuse from one or more sources at a disposal site that does not
fulfill the requirements
of a sanitary landfill." 415 ILCS
5/3.305.
"Refuse" is "waste,"
(415 ILCS
5/3.385)
and "waste" is defined to include "any garbage. '.. or other discarded
material" (415 ILCS
5/3.535).
The CDOE inspection report admitted into evidence as Complainant'sExhibit A
and the testimony at hearing show that broken concrete, scrap metal, compost materials,
landscaping debris, railroad ties, street signs, wood, construction and demolition debris,
used tires, and ash and remains from burning were accumulated in various piles on
the
Site on March 22,2006. CompI. Ex. A at 6 and 9-22; Tr. at 24, 84-85, 88,223, and 225.
Respondent admitted at hearing that some time after March 22, 2006, at least some
ofthe
waste that is the subject
ofthis action was disposed of at three separate landfills: the
cm
Landfill, Tri-State Disposal, and Lincoln [Disposal]. Tr. at 54-55. The fact that the
materials were taken to landfills demonstrates that the materials lacked productive
or re-
use value and, therefore, constituted "discarded material" within the meaning
ofthe term
"waste" and,
by extension, "refuse" under Section 21 (a) of the Act. 415 ILCS
5/2:1
(a).
See IEPA
v.
Carrico,
AC
04~27
(IPCB Sep. 2,
2004);IEPA
v.
Cadwallader,
AC 03-13
(IPCB May 20, 2004).
2
The waste observed on the Site on March 22, 2006 came from one or more off-
site sources as required under Section 21(a) ofthe Act. 415 ILCS 5/21 (a). Respondent
admitted that the waste observed on March 22, 2006 fell into three broad categories: 1)
waste that was on the Site when Respondent purchased the Site; 2) waste that was
brought onto the Site
by "fly-dumpers" after Respondent acquired the Site; and, 3) waste
that was brought onto the property
by E. King [Construction] as part of an agreement
with Respondent. Tr. at 11-13. Because the waste observed on the Site on March 22,
2006 was brought onto
the Site from external locations, it was "consolidated" on the Site
from "one or more sources" pursuant to Section 21(a) of the Act. 415 ILCS
5/21(a).
The Site does not meet the requirements of a sanitary landfill and is not permitted
as such. Respondent admitted that the Illinois Environmental Protection Agency
("IEPA") has not issued a permit for any operations on the Site. Tr. at 67. Therefore, the
Site conditions observed on March
22,2006 fulfill all ofthe requirements of"open
dumping" as defined under Section 3.305 ofthe 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 March 22, 2006
because Respondent was the owner of the Site and was thereby a]:)le to exercise control
over the Site at that time. CompI. Ex. B; Tr. at 67-68. -The Board has repeatedly held
that a landowner can be held liable for "causing or allowing" open dumping even ifthe
landowner allegedly did not actively participate in the dumping.
See IEPA
v.
Shrum,
AC
05-18 (IPCB Mar. 16,2006);
IEPA
v.
Carrico,
AC 04-27 (IPCB Sep. 2, 2004);
IEPA
v.
Rawe,
AC 92-5 (IPCB Oct. 16, 1992). Respondent claimed that fly-dumpers and
E.
King
dumped materials at the Site without Respondent'spermission. Tr. at 11-13. However, a
3
person can cause or allow open dumping in violation ofthe Act without knowledge or
intent.
See County ofWill
v.
Utilities Unlimited, Inc.,
AC 97-41 (IPCB July 24,1997),
citing, People
v.
Fiorini,
143 Ill.2d 318,574 N.E.2d 612 (1991).
In
addition, "passive
conduct" on the part of a landowner can amount to "acquiescence sufficient to firid a
violation
of Section 21(a) ofthe Act."
IEPA
v.
Shrum,
AC 05-18 (IPCB Mar. 16,2006).
Dumping could only occur at the Site ifthe Respondent either failed to secure the
driveway or allowed trucks to enter.
The only vehicle entrance to the Site was a gravel
driveway secured
by a gate with a lock on it. Tr. at 80-81, 169,207,221, and 230.
Vehicles were unable to access the Site at other points because the Site was otherwise
surrounded
by a fence, a large berm, and train tracks. CompI. Ex. A. at 8, 14, 18, and 20.
Respondent admitted that
E. King was given a key to the gate and that
E.
King dumped
dirt, broken concrete, debris, brick, and other waste on the Site. Tr.
at 13, 24 and 61.
Because Respondent failed to secure the Site
so as to prevent the dumping ofwaste on
the Site, Respondent should be found liable for causing or allowing open dumping under
Section 21(a)
of the Act. 415 ILCS 5/21 (a).
Respondent claimed that some
ofthe waste on the Site was present when
Respondent purchased the property. Tr. at 11. A certified copy
ofthe last recorded deed
shows that Respondent purchased the property in January 2005 - approximately 15
months prior to the inspection on March 22, 2006. CompI. Ex.
B; Tr. at 67-68. The
Board has held that an owner who allows waste to remain on its property after acquiring
the property is liable for open dumping.
See IEPA
v.
Shrum,
AC 05-18 (IPCB Mar. 16,
2006); IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20, 2004). Because Respondent
allowed waste to remain on the Site for approximately
15 months, Respondent should be
4
found liable for causing or allowing open dumping under Section 21 (a) of the Act. 415
ILCS
5/21
(a).
Respondent further stated that he was cleaning up the Site and sorting the waste in
order to dispose
of it at nearby landfills. Tr. at 21,39,41-42, 49,
51-52~
The Board has
repeatedly held that clean up efforts are not a defense to an administrative citation.
See
City
ofChicago
v.
City Wide Disposal,. Inc.,
AC 03-11 (IPCB Sept. 4, 2003). As stated
above, a person can cause or allow a violation
ofthe Act without knowledge or intent.
Accordingly, none
of these arguments by Respondent provides a defense to the proven
allegations. Respondent is therefore liable for causing and allowing the open dumping
of
waste as observed at the Site on March 22, 2006 in violation of Section 21 (a) ofthe Act.
415 ILCS
5/21
(a).
B.
Respondent's Open Dumping Resulted in Litter in Violation of Section
21(p)(1)
Respondent'scausing or allowing open dumping of wastes resulted in "litter"
under.Section 21 (p)(1) of the Act. 415 ILCS 5/21 (p)(1). 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, grass clippings or other lawn or garden waste,
... metal, .
. . motor vehicle parts,
... or anything else of an unsightly or unsanitary
nature, which has been discarded, abandoned or otherwise disposed
of
improperly. 415 ILCS
105/3(a).
The Board has previously applied this definition of"litter" to open dumping allegations.
See
St. Clair County
v.
Louis
1.
Mund,
AC 90-64 (IPCB Aug. 22, 1991). -Using this
definition, the scrap metal, compost materials, landscaping debris, railroad ties, street
signs, wood, garbage and used tires found at the Site are discarded materials and
5
constitute "litter" under Section 21 (p)(1) of the Act. Tr. at 25-26,59,84-85,87-88, and
223; CompI. Ex. A. at 6-7, 9-12, and 14-16. Accordingly, the Board should find
Respondent violated Section 21(p)(I).
C.
Respondent's Open Dumping Resulted in Scavenging in Violation of Section
21(p)(2)
Respondent'sopen dumping of these wastes also resulted in scavenging in
violation
of Section 21 (p)(2) of the Act. 415 ILCS 5/21 (p)(2). "Scavenging" is not
defined in the Act, but under the Illinois Administrative Code,
"scavenging" is defined as
"the removal
ofmaterials from a solid waste management facility or unit which is not
salvaging." 35 IlI.Adm.Code 810.1 03.
"Salvaging" is in tum defined as:
[T]he return
of waste materials to use, under the supervision of the landfill
operator, so long as the activity is confined to an area remote from the
operating face
of the landfill, it does not interfere with or otherwise delay
the operations
of the landfill, and it results in the removal of all materials
for salvaging from the landfill site daily or separates them
by type and
stores them in a manner that does not create a nuisance, harbor vectors or
cause an unsightly appearance. 35 IlI.Adm.Code 810.103.
The Board has used these administrative definitions
of "scavenging" and "salvaging" in
determining a respondent's liability under Section
21 (p)(2) ofthe Act.
See County of
Jackson
v.
Easton,
AC 96-58 (IPCB Dec. 19, 1996).
The CDOE inspection report admitted into evidence as Complainant'sExhibit A
and the testimony at hearing show that people were sorting and segregating materials on
the Site for the purpose
ofreturning some ofthe materials to productive use. CompI. Ex.
A at 6; Tr. at 56, 60, 97-98, 231, and 272. Respondent admitted that steel was being
taken out
of the waste materials on the Site in order to be recycled. Tr. at 59-60.
Because the Site was not permitted as a landfill, the return
of any waste materials on the
Site to productive use could not conform to the definition
of "salvaging" contained in the
6
Illinois Administrative Code. This definition of"salvaging" requires that "salvaging"
activities take place at a
"landfill" and under the supervision of a "landfill operator." 35
IlI.Adm.Code 810.103. As discussed above, the Site constituted an unpermitted "open
dump," not a permitted "landfill." Therefore, any removal
ofmaterials from the Site for
the purpose
ofreturning them to productive use must constitute "scavenging" and not
"salvaging."
In
addition, the materials that were to be returned to productive use were
stored on the Site in such a manner
as to cause an "unsightly appearance." CompI. Ex. A
at 9 and 11-17. The segregation
ofmetal materials at the Site and their improper storage
constituted "open dumping
of waste in a manner that results in ... scavenging" under
Section
21 (p)(2) of the Act, and therefore, Respondent violated that section.
D.
Respondent's Open Dumping Resulted in Open Burning in Violation of
Section
21 (p)(3)
Respondent's open dumping ofthese wastes also resulted in open burning in
violation
of Section 21 (P)(3) ofthe Act. 415 ILCS 5/21(P)(3). "Open burning" is
defined in Section 3.300
of the Act, as "the combustion of any matter in the open or in an
open dump." 415 ILCS 5/3.300. The CDOE inspection report admitted into evidence
as
Complainant'sExhibit A and the testimony at hearing show that materials were being
burned in the open at the Site on March 22, 2006. CompI. Ex. A at 6 and 18-19; Tr. at 80
and 99. The first CDOE inspector to arrive at the Site that day observed open flames and
smoke. CompI. Ex. A at 6 and 18-19; Tr. at 80 and 99. A CDOE inspector who arrived
later observed ashes at the Site. Tr. at 225. As discussed above, the Site constituted an
open dump. The burning
of waste at the Site constituted "open dumping of waste in a
m'annerthat results in
.. , open burning" under Section 21 (P)(3) ofthe Act, and
therefore, Respondent violated that section.
7
E.
Respondent'sOpen Dumping Resulted in Waste Standing in Water in
Violation of Section 21 (p)(4)
Respondent'sopen dumping of these wastes also resulted in deposition of waste
in standing water in violation of Section 21 (p)(4) of the Act. 415 ILCS 5/21 (P)(4). The
CDOE inspection report admitted into evidence as Complainan.t's Exhibit A and the
testimony at hearing
show that large piles of waste were standing in two to three inches
ofwater on the Site. CompI. Ex. A at 15 and] 8-] 9; Tr. at 89, 184-85, and 273. As
discussed above, the Site constituted an open dump.
The waste found sitting in water at
the Site constituted "open dumping ofwaste in a manner that results in ... waste
standing in water" under Section 21 (p)(4) ofthe Act, and therefore, Respondent violated
that section.
F.
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 ILCS
5/21
(p
)(7). "General 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, structures,
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 incidenfal to any
ofthose materials. 4]5 ILCS 5/3.160.
The CDOE inspection report admitted into evidence as Complainant'sExhibit A and the
testimony at hearing show that materials from construction, remodeling, repair or
8
demolition activities - such as bricks, broken concrete, wiring, pve piping, soil, wood
and commingled scrap metal
- were present at the Site on March 22, 2006. CompI. Ex. A
at
6,12-17, and 21-22; Tr. at 84-85, and 223. Respondent admitted that construction and
demolition debris observed on the Site on March 22, 2006 had been dumped
by E. King.
Tr. at 24. 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
eDOE inspection report, photographs, and testimony show that Respondent
caused
or allowed open dumping of waste resulting in litter, scavenging, open burning,
deposition
ofwaste in standing water, and the deposition of construction or demolition
debris in violation
of Sections 21(p)(1), 21 (p)(2), 21 (P)(3), 21 (P)(4), and 21 (P)(7) ofthe
Illinois Environmental Protection Act. 415
ILeS 5/21 (P)(1), (2), (3), (4), and (7). eDOE
respectfully requests that the Board enter a final order finding that Respondent violated
these sections and imposing the statutory penalty
of $7500 ($1500 for each violation).
9
Respectfully submitted,
CITY OF CHICAGO
DEPARTMENT OF ENVIRONMENT
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, IL 60602
(312) 742-3990/744-1438
10