BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    CITY
    OF
    CHICAGO
    DEPARTMENT
    OF
    ENVIRONMENT,
    Complainant,
    JOSE
    GONZALEZ
    & 1601-1759
    EAST
    130TH
    STREET,
    LLC.,
    INC.,
    ET
    AL.
    Respondents.
    )
    )
    AC:
    2006-039
    )
    AC:
    2006-040
    )
    AC:
    2006-041
    )
    AC: 2007-025
    - Consolidated
    )
    )
    )
    NOTICE
    OF
    FILING
    TO:
    Mr. Bradley
    P. Halloran
    Illinois
    Pollution
    Control
    Board
    100
    West Randolph
    Street,
    Suite
    11-500
    Chicago,
    Illinois
    60601
    Ms.
    Jennifer
    A.
    Burke,
    Senior
    Counsel
    City
    of Chicago,
    Dept.
    of
    Environment
    30 North
    La Salle
    Street,
    9
    th
    Floor
    Chicago,
    Illinois
    60602
    PLEASE
    TAKE
    NOTICE
    that we
    have
    this day
    filed
    with the
    Clerk
    ofthe Illinois
    Pollution
    Control
    Board,
    Respondent’s
    Motion
    to
    Reco
    der
    or
    Modify
    Final
    Order
    and
    Motion
    to Stay.
    Dated
    at Chicago,
    Illinois,
    this
    8
    th
    day
    Jeffrey
    J. Levine,
    P.C.
    #17295
    20 North
    Clark
    Street,
    Suite
    800
    Chicago,
    Illinois
    60602
    (312)
    372-4600
    JFF13Y
    J.
    LEVINE,
    P.C.
    A
    rn
    y
    for Respondents
    Jose
    onzalez,
    and
    1601-1759
    East
    130
    th
    Street,
    LLC.
    PROOF
    OF
    SERVICE
    The
    undersigned,
    being
    first
    duly
    sw
    on
    oath,
    deposes
    and
    says that
    he
    served
    a
    copy
    of
    the
    Notice
    together
    with the
    above
    mentio
    d
    cuments
    to
    the person
    to
    whom
    said Notice
    is
    directed
    by hand
    delivery,
    this
    8
    th
    day
    of
    )
    )
    )
    V.
    RECEVED
    Site
    Code:03
    16485103
    CLERK’S
    OFFICE
    JUL
    082009
    STATE
    OF
    LLINOS
    Pollution
    Contro’
    Board
    JEFF1
    J. LEVINE,
    P.C.

    BEFORE THE ILLINOIS POLLUTION
    CONTROL
    BOARD
    CITY
    OF
    CHICAGO
    DEPARTMENT
    )
    QF ENVIRONMENT,
    )
    )
    Site Code:03 16485103
    )
    )
    AC: 2006-039
    )
    AC: 2006-040
    )
    AC: 2006-041
    )
    AC: 2007-025 - Consolidated
    )
    )
    )
    MOTION
    TO
    STAY
    Now come Respondents Jose
    Gonzalez, and
    1601-1759
    East
    130
    th
    Street, LLC, by and through
    their
    attorney, Jeffrey J. Levine, P.C., and for their Motion
    to
    Stay
    enforcement of the Board’s
    June
    4, 2009, Order, state and assert as follows:
    1.
    Respondents have filed a Motion to Reconsider or Modify the Board’s Final Order.
    2. Respondents
    intend
    to
    appeal he decision
    if
    the Board
    does
    not grant the requested
    relief.
    3. Because of the
    substantive
    issues raised
    in the
    Motion
    to Reconsider, Respondents
    pray
    that enforcement of
    the Board’s Order be stayed until resolution of the matter.
    Wherefore, for
    the
    above and forgoing
    reasons, Respondents
    Jose Gonzalez, and 160 1-
    1759
    East 13
    th0
    Street, LLC, pray that this Board reconsider and/or modify its final order and for
    such further relief as is just and
    equitable.
    esp
    ctfully Submitted,
    J frey Levine, P.C.
    A
    me
    for Respondents
    Jose
    nzalez, and
    1601-1759 East
    130
    th
    Street, LLC.
    Jeffrey J. Levine, P.C. #17295
    20 North Clark Street, Suite 800
    Chicago, Illinois 60602
    (312)372-4600
    Complainant,
    v.
    JOSE GONZALEZ & 1601-1759 EAST
    l3O STREET,
    LLC.,
    iNC., ET
    AL.
    Respondents.
    JUL
    U
    82009
    pI7
    Dated: July 8, 2009

    BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    CITY OF
    CHICAGO
    DEPARTMENT
    )
    CLERK’S
    OFFICE
    OF
    ENVIRONMENT,
    )
    JUL
    08
    jjg
    )
    Site
    Code:0316485103
    Complainant,
    )
    POllUtIOn
    ATE
    OF
    Control
    ILLINOIS
    Board
    )
    AC:
    2006-039
    v.
    )
    AC:
    2006-040
    )
    AC:
    2006-041
    JOSE
    GONZALEZ
    & 160 1-1759
    EAST
    )
    AC: 2007-025
    - Consolidated
    l3O STREET,
    LLC.,
    iNC., ET AL.
    )
    )
    Respondents.
    )
    MOTION
    TO RECONSIDER
    OR MODIFY
    FINAL
    ORDER
    Now come Respondents
    Jose Gonzalez,
    and
    1601-1759
    East
    130
    th
    Street, LLC,
    by and
    through
    their attorney,
    Jeffrey J. Levine,
    P.C.,
    and
    for
    their
    Motion to
    Reconsider or Modify
    the
    June
    4, 2009
    Final
    Order,
    state and assert
    as
    follows:
    I.
    Introduction
    1. The Illinois Pollution
    Control
    Board, (hereinafter
    “the Board”),
    in Orders dated
    March
    19,
    2009 and June 4, 2009,
    made numerous
    factual
    and legal rulings
    regarding complaints
    made
    by
    the
    Chicago Department
    ofEnvironment
    (hereinafter
    “CDOE”), against
    Respondents
    and another
    entity.
    Said Respondents
    were cited
    for two specific
    types
    of pollution,
    material that
    had been fly dumped
    on the
    property and CTA waste
    from the
    Brown
    Line renovation
    that had
    recently been dumped
    on
    the
    property by E.
    King Hauling.
    2.
    The Board ruled that
    the CDOE did
    not prove
    that
    Respondents
    caused
    or allowed the
    open
    dumping
    of the
    fly-dumped
    waste. $ç: March
    19, 2009,
    Order,
    p.
    26.
    However, with regard
    to the
    CTA
    waste,
    the
    Board ruled that 1601-1759
    East
    130
    th
    Street,
    LLC., (hereinafter
    130
    th
    LLC”) and
    Jose Gonzalez,
    Respondents herein,
    allowed
    the open dumping
    of waste in a manner
    resulting
    in
    litter,
    open
    burning, and the
    disposition
    of
    general construction
    or demolition
    debris. See:
    March

    19,
    2009, Order,
    pp.
    27-9.
    IL
    Respondents
    Did Not
    Cause
    or Allow
    the
    Pollution
    3.
    While knowledge
    is
    not
    an
    element
    of a violation
    of
    Section
    12(a),
    alleged
    polluters
    are
    not
    charged
    under
    a theory
    of
    strict liability.
    The
    State must
    prove that
    the alleged
    polluter has
    the
    capability
    of
    control
    over
    the source
    ofthe pollution
    or that
    the alleged
    polluter
    was in control
    ofthe
    premises
    where
    the pollution
    occurred.
    People
    v. AJ Davinroy
    Contractors,
    249 Ill.App.3d
    788,
    793-96,
    618N.E.2d
    1282,
    1286-88
    (5
    t1
    ’Dist.
    1993);PhillzpsPetroleum
    Co. v.
    IllinoisEnvironmental
    Protection
    Agency,
    72
    Ill.App.3d
    217,
    390 N.E.
    2d 620
    (2 Dist. 1979).
    In this
    instance,
    the Board
    is
    mistaken
    in labeling
    Respondents
    as
    the
    polluters.
    The
    Board concluded
    that
    E.
    King Hauling,
    without
    the
    permission
    of Respondents,
    deposited
    the
    CTA
    waste on
    the ground
    at the site.
    .çç:
    March
    19, 2009,
    Order,
    p.
    24.
    4. The
    Board relies
    upon
    People
    v.
    Fiorini,
    143
    Il1.2d 318,
    574 N.E.2d
    612
    (1991) and
    Freeman
    Coal
    Mining
    Corp.
    v.
    PCB,
    621
    Ill.App.3d
    157, 163,313
    N.E.2d
    616, 621(5thDist.
    1974).
    The
    Fiorini
    decision
    involved
    an
    amendment
    to the
    statute
    requiring
    that
    a third-party
    defendant
    have
    actual
    knowledge
    that
    he caused
    or
    contributed
    to the
    illegal
    open
    dumping
    or open
    burning
    in
    order
    for liability
    to
    attach.
    The decision
    reviewed
    the
    established
    rules regarding
    violations
    and
    concluded
    that
    the amendment
    could
    not be
    retroactively
    applied.
    While
    Fiorini
    held that intent
    or
    knowledge
    are not
    recognized
    elements
    to prove
    a violation,
    the analysis
    applied
    by
    Illinois courts
    to
    determine
    whether
    an
    alleged polluter
    has
    violated
    the
    act is
    whether
    the
    alleged
    polluter
    exercised
    sufficient
    control
    over the
    source
    of
    the
    pollution.
    Fiorini, 143
    Ill.2d at
    346. In the
    Freeman decision,
    the
    Freeman
    Mine
    argued
    that
    it
    could
    not be held
    liable because
    naturally
    occurring
    rainwater
    caused
    the
    refuse
    from
    the
    mining
    operation
    (gob
    pile)
    to
    run off
    into
    an
    adjacent
    creek.
    The
    Court
    premised
    the
    liability upon
    the fact
    that the
    Freeman
    Mine
    had
    created
    and
    was
    aware
    of the

    pollution refuse.
    • .there
    is no question that Petitioner had knowledge
    of the
    pollutional discharges flowing
    from
    its land and the gob pile
    it had created. Freeman Id.
    621 IlLApp.3d at 161
    In the instant case, Respondents neither created the pollution
    nor
    were
    aware of the dumping until
    after the loads had been dumped contrary to the agreement
    to
    store the material in roll-off
    boxes.
    5. In Illinois, a property owner is responsible for pollution on his land,
    unless the
    facts
    establish
    that the owner lacked the capacity to control the source
    of
    the pollution or had taken
    precautions to prevent intervening causes of the pollution. Perkinson v. illinois Pollution Control
    Board, 187
    Ill.App.3d 689, 694-95, 543
    N.E.2d
    901(3rd Dist 1989).
    Courts seek to hold owners
    responsible
    for
    pollution that develops on an owner’s
    property
    or
    pollution that occurs where an
    owner
    has
    not
    adequately
    secured his property against vandals. $ç: Union Petroleum
    Corp.
    v.
    United
    States, 651 F.2d 734
    (Ct.
    Cl.
    1981). If a property owner does not
    exercise sufficient control
    over the
    source
    of
    the pollution in
    such
    a way as
    to
    have
    caused, threatened, or allowed the pollution,
    he cannot be held
    responsible
    for a violation. Phillips Petroleum Company v.
    illinois Environmental
    Protection Agency,
    72 Ill.App.3d 217, 220-21, 390 N.E.2d 620 (2’’ Dist. 1979).
    6. The findings of
    liability against respondents are against the manifest weight of the
    evidence as the Respondents herein
    are
    not the
    alleged
    polluters. In this instance,
    the source
    of the
    pollution is
    the
    City
    of Chicago’s Transit Authority. (The Complainant is also the City of Chicago.)
    The pollution was
    delivered
    by
    E. King Hauling working as a sub-contractor for Paschen
    Construction
    pursuant to a contract
    with
    the City of Chicago.
    All workers at the site at the time
    of
    the
    CDOE inspection
    were
    employed by E. King Hauling or Paschen
    Construction.
    See: March
    19,
    2009,
    Order,
    p.
    14. It was the E.
    King employees who were burning wood to keep warm. See: March
    19, 2009, Order,
    p.
    28.

    7.
    As
    the
    Board
    has
    determined,
    the
    polluters
    were
    a
    different
    entity
    than
    Respondents.
    It
    is
    uncontested
    that
    the
    pollution
    originated from
    the
    renovation
    of
    CTA’s
    Brown
    Line,
    and
    was
    dumped
    on Respondent’s
    land
    contrary
    to
    the
    agreement
    made
    with
    Respondent
    Jose
    Gonzalez.
    Mr.
    Gonzalez,
    immediately
    upon
    being
    made
    aware
    that
    E.
    King
    Hauling
    had
    violated
    their
    agreement,
    proceeded
    to
    this
    site
    and
    supervised
    the
    cleanup
    of the
    site.
    In
    this
    instance,
    CDOE
    cannot
    demonstrate
    that
    the
    alleged polluter
    had
    the
    capability
    of
    control
    over
    the
    pollution
    or that
    the
    alleged
    polluter
    was
    in
    control
    the
    premises
    where
    the
    pollution occurred,
    as
    the
    actual
    entity
    that
    caused
    and
    allowed
    the
    pollution,
    E.
    King
    Hauling,
    was
    not
    charged.
    8. The
    hearings
    revealed
    that
    the CDOE
    chose
    not
    to conduct
    an
    adequate
    investigation
    (which
    would
    have
    resulted
    in
    potential
    liability
    for
    the
    City
    of Chicago),
    and
    chose
    not
    to
    charge
    the
    contractors
    working
    under
    contract
    with
    the City
    of
    Chicago.
    The
    CDOE
    has
    not
    demonstrated
    that
    Respondents
    violated
    the
    act
    as
    they
    did
    not
    exercise
    sufficient
    control
    over
    the
    source
    of
    the
    pollution,
    the
    CTA.
    In this
    instance
    Respondents
    were
    not
    the
    source
    of
    the
    pollution,
    did
    not
    cause
    the
    pollution,
    did
    not
    allow
    the
    pollution
    and
    did
    not
    know
    the
    pollution
    had
    occurred
    until
    after
    the
    fact.
    The
    hearings
    demonstrated
    that
    Respondents neither
    caused,
    threatened
    nor
    allowed
    the
    pollution.
    The
    least
    culpable
    party
    was
    ticketed. As
    the
    violation
    is
    penal
    in nature,
    the
    plain
    meaning
    of
    the
    statute
    must
    be
    strictly
    construed.
    III.
    The
    Pollution
    was
    a Result
    of Uncontrollable
    Circumstances
    9.
    During
    the
    course
    ofthe
    limited
    investigation,
    Inspectors
    Macial
    and
    Chris
    Antonopoulos
    discovered
    the
    entities
    responsible
    for
    a
    large
    amount
    of
    debris
    on
    the
    site.
    Both
    investigators
    testified
    regarding
    an
    agreement
    entered
    into
    regarding
    what
    has
    been
    deemed
    the
    “suspect
    CTA
    waste”
    at
    the property
    in
    question. Mr.
    Antonopoulos
    described
    how
    the
    agreement
    was
    between
    Mr.
    Gonzalez,
    Paschen
    Construction,
    B.
    King
    and
    a
    representative
    of
    the
    CTA.
    The
    agreement
    called
    for

    CTA
    waste
    material
    from
    the
    Brown
    Line
    construction,
    to
    be
    stored
    in
    roll-off
    truck
    boxes
    over
    the
    weekend
    at
    the
    site
    in
    question.
    AC
    2006-39,
    May
    17,
    2007,
    Tr.
    31;
    May
    9,
    2007,
    Tr.
    44,
    59-60.
    10.
    When
    the
    CID
    landfill
    opened,
    the
    roll-off
    boxes
    would
    be
    removed
    from
    the
    property
    and
    brought
    to
    CID.
    AC
    2006-3
    9,
    May
    17,
    2007,
    Tr.
    31.
    Complainant’s
    investigation
    revealed
    that,
    either E.
    King
    or
    Paschen
    Construction
    didn’t
    follow
    the
    agreement
    to store
    the
    CTA
    waste
    in
    the
    roll-off
    trucks.
    It
    was
    that
    entity
    who
    caused
    the
    CTA
    waste
    to be
    deposited
    at the
    property
    in
    question.
    May
    17,
    2007,
    Tr.
    49.
    11.
    The
    investigators
    collected
    manifests
    at the
    site
    which
    indicated
    that
    the
    waste
    material
    came
    from
    the
    CTA
    at
    567
    West
    Lake
    Street.
    2006
    AC-39, May
    9,
    2007.
    Tr.
    33-6.
    E.
    King
    was
    the
    hauler
    on
    the
    manifests.
    2006
    AC-39,May
    9,
    2007,
    Tr.
    83-4.
    Mr.
    Antonopoulos
    testified
    that
    Mr.
    Maciel
    had
    the
    hazardous
    waste
    manifests
    on the
    day
    of
    the
    investigation.
    2006
    AC-39,
    May
    17,
    2007,
    Tr.
    44-5.
    No
    tickets
    were
    issued
    to
    the
    CTA,
    Paschen
    Construction
    orE.
    King
    Trucking.
    The
    investigators
    allowed
    the
    waste
    to
    continue
    to
    be
    removed.
    AC
    06-39,
    May
    9,
    2007,
    Tr.
    204.
    12.
    Complainant’s
    investigation
    revealed
    that,
    either
    E.
    King
    or
    Paschen
    Construction
    didn’t
    follow
    the
    agreement
    to
    store
    the
    waste
    in
    the
    roll-off
    trucks. It
    was
    that
    entity
    who
    caused
    the
    CTA
    waste
    to be
    deposited
    at
    the
    property
    in
    question.
    2006
    AC-40,
    May
    17,
    2007,
    Tr.
    49.
    13.
    Respondents
    had
    taken
    every
    precaution
    to
    insure
    that
    the
    waste
    would
    be
    kept
    in
    roll-off
    boxes
    at the
    site.
    The
    property
    was
    secured
    with
    fencing
    and
    a locked
    gate.
    Respondent
    Gonzalez
    entered
    into
    agreements
    with
    reputable
    contractors.
    Respondents
    were
    not
    the
    polluter
    nor
    did
    they
    encourage
    or allow
    the
    action.
    The
    pollution
    was
    dumped
    as
    a result
    of
    uncontrollable
    circumstances,
    a
    mistake
    made by
    employees
    of
    another
    entity.
    IV.
    The
    Evidence
    of
    a
    Solicitation
    of
    a
    Bribe
    was
    Neither
    Unsubstantiated
    nor
    Inconclusive
    14.
    Inspector
    Rafael
    Macial knew
    Respondent
    Jose
    Gonzales
    growing
    up
    in
    his

    neighborhood.
    Respondent
    Gonzalez testified
    that
    Investigator
    Macial
    had
    previously
    threatened
    him
    when
    he refused
    to “work
    out”
    (pay
    a
    bribe)
    an
    alleged
    violation.
    Macial
    told Respondent:
    “You’ll
    pay
    for
    this.”
    $:
    AC
    06-39,
    May
    9,
    2007,
    Tr. 18
    1-82.
    15.
    Inspector
    Macial
    was
    not
    adverse
    to
    “working
    out”
    claims.
    Inspector
    Macial
    testified
    that
    on
    occasions
    he
    has discussed “working
    out”
    claims
    with
    alleged
    violators
    rather
    than
    issuing
    violations.
    See:
    AC
    06-39,
    May
    9, 2007,
    Tr.
    126-28.
    Mr.
    Macial
    testified
    that
    he has
    told
    certain
    individuals
    that
    he could
    help
    them
    avoid
    citations.
    May
    9,
    2007,
    Tr. 126.
    He
    would
    say
    to
    individuals,
    “Help
    me
    help
    you
    avoid
    a
    citation.”
    May
    9,
    2007,
    Tr.
    127.
    Inspector
    Macial
    denied
    asking
    for a
    bribe
    stating
    that
    based
    upon
    his
    credibility,
    he
    was pretty
    sure that
    he
    had
    never
    taken
    a bribe.
    See:
    May
    9,
    2007,
    Tr.
    124-27.
    However,
    Respondent
    Gonzalez
    interpreted Mr.
    Macial’s
    offers
    to
    “work
    it
    out”
    as
    a request
    for
    a bribe.
    May 9,
    2007,
    Tr.
    180-83.
    16.
    As Respondent
    had refused
    to pay
    Investigator
    Macial
    the bribe
    he
    had
    requested,
    Macial
    took
    specific
    retaliatory
    actions.
    Inspector
    Macial
    ticketed
    Respondent
    Jose
    Gonzalez’s
    landscaping
    company,
    (believing
    that he
    was
    under
    contract
    for the
    CTA),
    telling
    him:
    “...I’ll
    see
    to
    it that
    you
    never
    get
    work
    from
    the
    CTA
    again.”
    :
    AC
    06-3
    9,
    May
    9,
    2007,
    Tr.
    204.
    He told
    Respondent
    Gonzalez,
    “...we’re
    going
    to
    write
    you
    a
    ticket
    for
    everything I could
    write
    you a
    ticket
    on.”
    May
    9,
    2007,
    Tr.
    193.
    Baseless
    violations
    were
    written
    to
    Speedy
    Gonzalez
    Landscaping,
    Inc.,
    in
    an
    effort
    to
    preclude
    that
    entity
    from
    obtaining
    city
    contracts.
    17.
    The
    alleged
    violations 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.
    AC
    06-39,
    May
    9,
    2007,
    Tr.
    68,
    129-32.
    Macial
    contended
    that
    these
    charges
    were
    put
    into
    his
    investigative
    report
    because
    Respondent
    Speedy
    Gonzalez
    Landscaping,
    Inc.,
    committed the
    additional
    offenses
    (AC
    06-39,
    May
    9.
    2007,
    Tr.
    130),
    but
    he
    had
    no evidence
    that
    the
    offenses

    occurred. AC 06-39,
    May 9,
    2007, Tr.
    68, 129-32.
    These allegations are listed as attachment “B”
    in Complainant’s Inspection Reports. $: Complainant’s Exhibits.
    18. Mr. Maciel conceded that he had “no idea” why the violations were charged
    when
    there
    was no basis for them. AC 06-3 9, May 9. 2007, Tr.
    132. Investigator Macial, on March 22, 2006,
    wrote numerous false allegations yet denied that the offenses had occurred. He
    ticketed entities who
    did not own or control the property. Macial testified that
    he
    just
    assumed that Mr. Gonzalez “was
    doing
    something illegal.” 2006 AC-40, May
    9,
    2007, Tr. 83. This is direct evidence
    indicating
    that
    Macial attempted to retaliate against Respondent for failure to pay a
    bribe.
    19.
    Another indication is that, even though Respondents did not cause
    the
    pollution,
    Respondents were not
    allowed time
    to
    clean the property. Chris Antonopoulos
    testified that people
    are given time to clean up
    sites where they did not cause or allow the debris. May 17, 2007, Tr. 42.
    Antonopoulos testified
    that
    ifa
    property owner has waste material dumped on his land, it is
    common
    for
    investigators
    to give
    the owner time to clean up the property. Correspondingly, Antonopoulos
    stated that a person with a
    large amount
    of
    waste would
    be
    given more time than a person with less
    debris. May 17, 2007, Tr. 40-2. This is consistent with the statute which allows
    corrective action
    to
    eliminate
    the
    pollution
    within a reasonable time. See: 415 ILCS 5/3. In this instance, contrary
    to
    the statute, Respondents
    were not allowed reasonable time (or any amount
    of
    time) to eliminate
    the
    waste. Respondents
    were told by investigators to stop cleaning the site and were given a fourth
    citation when they
    followed those instructions. The Board ruled that this fourth
    citation
    was
    improperly issued. $:
    March 19, 2009 Order,
    pp.
    3, 35. However, no mention
    is made
    of
    Complainants failure to follow the
    statute
    or the retaliatory nature of the CDOE’s agents.
    20. No
    evidence impeached the testimony ofRespondent Jose Gonzalez
    that
    Inspector Macial
    had sought a bribe. In
    contrast, Inspector Macial’s testimony was consistently false. Maciel

    maintained at
    the hearing that the trucks
    on site were
    dumping
    material.
    May
    9.
    2007,
    R. 42, 72, 74,
    78. He
    later
    testified that
    he
    assumed
    this.
    May
    9, 2007,
    Tr. 137. Mr. Macial initially
    testified
    that
    he could not determine
    whether
    trucks
    were loading
    or
    unloading at
    the site. May
    9. 2007, Tr. 16.
    He
    testified
    that he concluded
    that
    another
    entity’s trucks were
    dumping at
    the site.
    May
    9. 2007, Tr.
    72,
    74. This conclusion
    is contrary
    to
    his
    report
    (May
    9.
    2007, Tr. 43,
    46-7), and his prior
    deposition
    testimony
    wherein
    he
    testified that the trucks
    were
    loading.
    May
    9,
    2007,
    Tr. 74-6.
    21. Maciel
    testified that he would
    impound
    a
    truck
    if it was dumping
    but
    did not
    impound
    the E. King
    trucks on the lot. May
    9,
    2007,
    Tr.
    48.
    Neither Macial
    or anyone else
    saw
    trucks
    dumping.
    May
    9, 2007,
    Tr. 81. He agreed that
    he testified both at
    the hearing
    and
    at his deposition
    that,
    rather than
    loads being dumped,
    the
    material
    was being removed and
    that the trucks
    were
    loading. May
    9,
    2007,
    Tr. 138.
    He then testified that
    a worker told him,
    “We’re bringing
    it here.”May
    9,
    2007,
    Tr. 141, line
    6.
    He
    then testified, “I
    don’t recall if he did
    say that
    or not.”
    May 9, 2007, Tr.
    141,
    line 12. The Board
    termed
    this
    completely
    fluid testimony
    as “...merely
    in the nature
    of
    clarification and amplification.”
    Macial
    ‘ s claim ofFBI training
    is deemed
    “irrelevant”
    by
    the
    Board.
    See:
    March
    19,
    2009
    Order,
    p.
    9.
    22.
    The
    issue
    is not
    that the material was
    both deposited
    and removed or Macial’s
    testimony
    regarding
    some hypothetical
    training, rather
    the issue
    is
    Macial’s observations
    and
    his complete
    inability to provide
    competent evidence
    related thereto.
    A more rational witness,
    Mr. Antonopoulos,
    testified that the
    individuals
    on
    site
    were cleaning
    up the site, moving
    piles and dumping
    them
    into
    E.
    King trucks
    which
    left the site. May 17, 2007,
    Tr. 59-60.
    Antonopoulos
    concluded that this
    was
    consistent with cleaning
    the site.
    May 17, 2007, Tr.
    53-4.
    The
    Board
    however,
    did not believe
    that
    Macial’s
    false
    testimony materially
    prejudiced
    Respondents
    ($:
    March 19,
    2009 Order,
    p.
    9)
    and
    relied upon
    his testimony in holding
    Respondents
    liable.

    23.
    Another
    indication
    of
    the retaliatory
    nature
    of
    the
    investigators
    was the
    utter
    lack
    of
    information
    regarding
    other
    entities
    at the
    site. No photographs
    of workers
    or E.
    King trucks
    were
    taken
    by the
    investigators.
    Neither
    the manifests
    nor
    any
    of
    the other
    documents
    observed
    that
    day
    regarding
    other individuals
    at the site
    are
    included
    in the
    investigation
    report.
    2006 AC-40,
    May
    9,
    2007.
    Tr.
    3 5-8. No mention
    was
    made
    in
    the
    investigation
    report
    that
    Elaine
    King
    was present
    on site
    discussing
    the
    agreement.
    2006 AC-40,
    May
    9,
    2007,
    Tr. 44-9. Macial
    testified
    that
    he selectively
    excluded
    such
    information
    in his
    investigation
    report.
    2006
    AC-40, May
    9,
    2007,
    Tr. 48-52.
    24.
    Mr. Macial
    further
    testified
    that
    his
    ability
    to read peoples
    credibility
    was
    part of
    his
    investigation.
    2006 AC-3
    9,
    May
    9,
    2007,
    Tr.
    117.
    He claimed
    that
    he had learned
    this
    in special
    FBI
    training
    (May
    9,
    2007,
    Tr. 116-24),
    but
    Maciel
    could
    not give
    any specifics.
    He didn’t
    recall
    the
    name of the
    course, the
    name of
    the teacher,
    the
    address
    of the
    course,
    and finally,
    that he paid
    for
    the course
    with a money
    order.
    As Mr.
    Macial’ s
    credibility
    as a witness
    was in question,
    the
    Hearing
    Officer
    should
    have
    taken
    part in
    the Board’s
    decision.
    25. Throughout
    the
    course
    ofthe discovery
    and
    hearing,
    Inspector
    Macial
    repeatedly
    referred
    to
    Respondent
    Jose
    Gonzalez
    as “Speedy
    Gonzalez,”
    the
    name
    of
    the Respondent
    landscaping
    company.
    See: AC
    06-3
    9,
    May
    9,
    2007,
    Tr.
    39-40. After
    the initial
    violations
    were
    alleged,
    an
    unknown
    individual
    contacted
    the Department
    of the
    Environment
    and
    stated
    that
    “Speedy
    has
    dumped
    new
    C and
    D
    waste on
    the
    site.”
    See: AC
    07-25, May
    17, 2007,
    Tr. 15-8.
    Additional
    violations
    were then
    filed against
    Respondent.
    26.
    The
    testimony
    given
    by Respondent
    Gonzalez,
    the admission
    by
    Macial
    that
    he would
    “work
    out” violations
    (“Help
    me
    help
    you
    avoid
    a citation.”),
    the
    fact that no
    other entities
    received
    violations,
    the
    duplicitive
    nature
    ofthe violations
    given
    to multiple
    entities,
    the
    unexplained
    baseless
    nature
    of many
    of
    the charges
    and the
    false
    testimony
    provided
    by
    Inspector
    Macial
    are direct
    and

    indirect
    evidence
    of a Solicitation of a
    Bribe.
    The
    ruling
    of
    the
    Board
    in
    holding
    that
    the
    claim
    that
    Macial
    sought
    a
    bribe
    was
    unsubstantiated
    and inconclusive ($: March
    19,
    2009
    Order,
    p.
    9)
    is
    arbitrary,
    capricious
    and
    against
    the
    manifest
    weight
    of
    the evidence.
    The Board
    cannot
    hold
    that
    discovery
    omissions
    were harmless
    and also
    rule
    that Respondents proof
    regarding
    the
    solicitation
    of
    a
    bribe
    was
    inconclusive
    and
    unsubstantiated.
    See:
    March
    19,
    2009
    Order,
    p.
    9.
    The
    Board
    is
    unaware
    if
    the discovery
    requested
    would
    have
    substantiated
    the
    proofthat
    a
    bribe was
    solicited.
    For
    instance,
    ifCDOE
    investigators
    identified
    witnesses
    present,
    by providing
    their business
    cards,
    those
    witnesses
    could have
    lent
    credence
    to Mr.
    Gonzalez’s
    testimony
    and
    further
    impeached
    Inspector
    Macial.
    The
    action
    by
    the
    Board
    is
    against
    the manifest
    weight
    of the evidence
    and
    is
    arbitrary
    and
    capricious.
    V.
    Complainant
    did
    not
    sustain
    its Burden
    of Proof
    27. The
    Board’s
    March
    19,
    2009
    Order
    holds that
    pursuant
    to the
    agreement,
    E. King
    Hauling
    was
    supposed
    to keep
    all
    loads
    of CTA
    debris
    inside roll-off
    containers
    (dumpsters) or the
    beds of
    the
    dump
    trucks
    while
    on
    the
    site. $:
    March
    19,
    2009
    Order,
    p.
    12. All
    workers
    on
    the site
    at the
    time
    of the
    CDOE
    inspection
    were
    employed
    by E.
    King
    Hauling
    or
    Paschen
    Construction.
    :
    March
    19,
    2009 Order,
    p.
    14.
    Elaine
    King
    had
    not
    followed
    the
    agreement
    to
    store
    material
    on
    site
    where an
    E. King
    Hauling
    supervisor
    was
    also present.
    :
    March
    19,
    2009 Order,
    p.
    15. Without
    Mi.
    Gonzalez’s
    knowledge,
    the
    agreement
    was
    not followed
    and the
    hauler
    dumped
    CTA
    waste
    at
    the site
    without
    permission. $:
    March
    19, 2009
    Order,
    p.
    24.
    When
    Mr.
    Gonzalez
    learned
    of
    the
    breach
    of the
    agreement,
    he
    immediately
    and vociferously
    demanded
    that the
    waste
    be
    cleared
    from
    the
    property.
    $ç:
    March
    19,
    2009
    Order,
    p.
    19.
    28.
    CDOE
    witness
    Antonopoulos
    testified
    that
    it
    was common
    for investigators
    to give
    the
    owner
    time
    to clean
    up the
    property
    and
    that an
    owner
    with a
    large amount
    of
    waste
    would
    be given

    more
    time than
    one
    with
    less
    waste.
    See: March
    19,
    2009
    Order,
    p.
    19.
    Respondent
    was
    never
    contacted
    by
    CDOE
    and
    given
    time
    to
    clean
    the
    debris.
    $:
    March
    19, 2009
    Order,
    p.
    22.
    Respondent
    was
    not the
    owner
    of
    the
    property.
    It was
    owned
    by Respondent
    1601-1759
    East
    130
    th
    Street,
    LLC.
    Respondent
    Jose
    Gonzales
    acted
    in his
    capacity
    as a
    corporate
    representative of
    Respondent
    1601-1759
    East
    13
    0
    th
    Street,
    LLC.
    He
    maintained
    access
    to the
    property,
    but
    no
    evidence
    demonstrated
    that
    he
    caused
    or allowed
    the
    pollution,
    that
    he had
    control
    over the
    pollution,
    or that
    he
    controlled
    the
    premises
    when
    the
    pollution
    occurred.
    $ç: People
    v.
    A.J Davinroy
    Contractors,
    249
    Ill.App.3d
    788,
    793-96,
    618
    N.E.2d
    1282,
    1286-88
    (
    5
    th
    Dist.
    1993)
    29.
    All
    evidence
    indicated
    just
    the opposite.
    No
    testimony
    was
    presented
    regarding
    the
    individuals
    present
    when the
    dumping
    took
    place.
    However,
    contrary
    to the
    evidence
    presented
    at
    the
    hearings,
    the
    Board
    ruled
    that
    Mr. Gonzalez
    was
    in
    control
    of
    the
    Site when
    the
    CTA waste
    dumping
    took
    place
    and had
    the
    capability
    of controlling
    the pollution
    and
    that
    Mr.
    Gonzalez
    allowed
    the
    dumping
    of
    the
    CTA waste.
    :
    March
    19,
    2009
    Order,
    p.
    25.
    This ruling
    by the
    Board
    is
    arbitrary
    and
    capricious,
    not
    supported
    by any
    evidence,
    and therefore
    is
    against
    the manifest
    weight
    of the
    evidence.
    30.
    The Board’s
    ruling
    contains
    other
    errors
    such
    as
    the discussion of Respondents’
    August
    6, 2007
    Motions
    to
    Dismiss.
    :
    March
    19, 2009
    Order,
    pp.
    7-9.
    On
    that date
    Respondents
    filed
    Post Hearing
    Briefs.
    Contrary
    to the
    Order, Respondent
    Speedy
    Gonzalez
    Landscaping, Inc.’s Post
    Hearing
    Brief
    specifically
    lists,
    at
    paragraph
    7,
    the false
    allegations made by
    CDOE,
    including
    salt
    unloading,
    asbestos,
    waste
    next
    to
    residential
    homes
    and oil
    flowing
    into
    sewers.
    These false
    claims
    indicate
    reprisal
    as
    a
    result
    of Respondent
    Gonzalez’s
    failure
    to
    pay
    Macial
    the bribe
    he demanded.
    VI.
    Discovery
    Violations
    Resulted
    in Due
    Process
    Violations
    31.
    The Board’s
    March
    19,
    2009,
    Order,
    at
    page
    9,
    dismisses
    Respondents
    claims
    of

    discovery
    abuse
    as
    “harmless.”
    Respondents
    contend
    those
    omissions,
    constitute a denial
    of
    procedural
    due process.
    Respondents
    had
    issued
    subpoenas
    to
    all
    Complainant’s
    witnesses
    for
    depositions
    as
    well
    as
    for the
    hearing.
    Respondents subpoenas
    were
    ignored.
    The investigator
    in this
    case,
    Rafael
    Maciel,
    testified
    that certain
    information
    was
    transcribed
    into
    “field
    notes”.
    Counsel
    for
    Complainant
    was
    not
    informed
    of
    the
    existence
    of
    these
    notes.
    AC
    06-3 9,
    May
    9,2007,
    Tr.
    5 8-9.
    Mr.
    Maciel
    testified
    that
    Edward
    Collins
    “took
    the information down”.
    32. On
    May
    1, 2007,
    Mr.
    Maciel,
    Mr.
    Collins
    and
    all
    other
    witnesses
    were issued
    subpoenas
    for
    documents
    for the
    hearing.
    The
    subpoenas
    sought
    “any
    and
    all
    documents
    related”
    to
    the cases.
    The
    “field
    notes”
    referenced
    by Mr.
    Maciel
    were
    never
    produced
    in
    discovery
    or pursuant
    to the
    subpoenas.
    Nor
    were
    the business
    cards
    collected from
    individuals
    at
    the site
    ever
    produced
    pursuant
    to
    the
    subpoena.
    AC
    06-3
    9, May
    9,
    2007,
    Tr.
    53-4.
    Complainants
    therefore
    selectively
    withheld
    documents
    sought
    pursuant
    to subpoena.
    Although
    counsel
    for
    Complainant
    has
    a continuing
    duty
    to
    provide
    discovery,
    the
    material
    was
    never
    produced.
    The
    business
    cards
    collected
    by
    Macial
    would
    have
    provided
    the
    identity
    ofwitnesses
    who
    would
    have
    substantiated
    Respondent
    Gonzalez’s claim
    that
    Macial
    had
    sought
    a
    bribe.
    $ç:
    March
    19,
    2009,
    Order
    p.9,
    holding
    that
    claim
    of
    bribery
    solicitation
    unsubstantiated.
    Complainants
    selectively
    withheld
    documents
    sought
    pursuant
    to
    subpoena.
    Respondents objected
    to the
    introduction
    of
    Complainants
    exhibits
    as
    they
    were
    not
    complete.
    The
    Board
    failed
    to
    penalize
    Complainants
    for
    their
    discovery
    violations
    and
    accepted
    Macials
    testimony.
    33.
    Contempt
    for
    the
    legal
    process
    was
    also
    demonstrated by
    Mr.
    Maciel’s
    reference
    to his
    claimed
    training
    by
    the
    FBI
    regarding
    his
    ability
    to
    tell
    if someone
    was
    telling
    a lie.
    Mr.
    Maciel
    testified
    that he
    had
    not
    disclosed this
    alleged
    training
    in his
    deposition
    testimony
    because
    “he only
    gave
    information
    that
    he
    thought was
    pertinent”.
    AC
    06-3 9,
    Tr. 118.
    Complainant’s
    agent
    admitted

    that
    he failed
    to
    give truthful
    deposition
    testimony
    by determining
    what
    he
    maintained
    was
    “pertinent”.
    Respondents
    were
    therefore
    precluded
    an
    opportunity
    to
    investigate
    Maciel’
    s
    claim
    and
    properly
    impeach
    his
    testimony.
    34.
    As
    the
    Board
    did not
    follow
    discovery
    requirements
    and
    the hearing
    did
    not
    comport
    to
    established
    rules
    the
    proceeding
    violated
    the
    fundamental
    due
    process
    rights
    of
    Respondents.
    Respondents
    were
    treated
    differently from Complainants
    who
    were
    not
    required
    to follow
    procedures
    for the
    hearing.
    Finally,
    there
    is
    no evidence
    that the
    costs imposed
    were
    reasonable.
    VII.
    Conclusion
    35.
    Respondents
    contend
    that
    the action
    by
    the
    Board
    is
    arbitrary
    and capricious
    and
    against
    the
    manifest
    weight
    of
    the
    evidence.
    Wherefore,
    for
    the above
    and
    forgoing
    reasons,
    Respondents
    Jose
    Gonzalez,
    and
    1601-1759
    East
    1
    30
    th
    Street,
    LLC,
    pray
    that this
    Board
    reconsider
    and/or
    modify
    its final
    order
    and for
    such
    further
    relief
    as is just
    and
    equitable.
    Dated:
    July
    8,
    2009
    Jeffrey
    J.
    Levine,
    P.C.
    #17295
    20
    North
    Clark Street,
    Suite
    800
    Chicago,
    Illinois
    60602
    (312)
    372-4600
    Submitted,
    effre
    J. Levine,
    P.C.
    A
    orn
    for Respondents
    Jose
    nzalez,
    and
    1601-1759
    East
    130
    th
    Street,
    LLC.

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