1 ILLINOIS POLLUTION CONTROL BOARD

May 8, 2003

3 CITY OF CHICAGO DEPARTMENT )

OF ENVIRONMENT, )

4 )

Complainant, )

5 )

vs ) No. AC 03-11

6 )

CITY WIDE DISPOSAL, INC., )

7 )

Respondent. )

9 Transcript of proceedings

10 called by the Illinois Pollution Control Board

11 before Hearing Officer Bradley P. Halloran pursuant

12 to notice, taken before LORI ANN ASAUSKAS, CSR, RPR,

13 a notary public within and for the County of Cook

14 and State of Illinois, at Room 11-512, James

15 Thompson Center, 100 West Randolph Street, Chicago,

16 Illinois, on the 3rd day of June, A.D., 2003,

17 scheduled to commence at 1:00 o'clock p.m.,

18 commencing at 1:30 p.m.

L.A. REPORTING (312) 419-9292

1 A P P E A R A N C E S:

3 CITY OF CHICAGO,

Assistant Corporation Counsel

4 30 North LaSalle Street

Suite 2500

5 Chicago, Illinois 60602-2575

(312) 742-0330

6 BY: MR. CHARLES KING,

7 Appeared on behalf of the Claimant;

8 FRANK & ASSOCIATES,

734 North Wells Street

9 Chicago, Illinois 60610

(312) 654-9020

10 BY: MR. EDWARD W. PIROK,

11 Appeared on behalf of the Respondent.

12 ALSO PRESENT:

14 Mr. Lafayette Robertson

15 Mr. Anthony Barbara

16 Mr. Orhelio Garcia

L.A. REPORTING (312) 419-9292

1 I N D E X

2 PAGES

4 Greeting by Hearing Officer.................. 4 - 7

5 Direct Examination of Mr. Robertson.......... 7 - 19

6 Cross-Examination of Mr. Robertson...........19 - 36

7 Claimant Rests............................... 36

8 Direct Examination of Mr. Barbara............37 - 47

9 Cross-Examination of Mr. Barbara.............47 - 48

10 Direct Examination of Mr. Garcia.............49 - 53

11 Respondent Rests............................. 53

12 Direct Rebuttal of Mr. Robertson.............53 - 56

13 Cross-Rebuttal of Mr. Robertson..............57 - 59

14 Redirect Rebuttal of Mr. Robertson...........59 - 59

15 Scheduling Discussion........................60 - 60

16 Closing Argument by Mr. Pirok................61 - 63

17 Closing Remarks by Hearing Officer...........63 - 64

19 E X H I B I T S

20 Marked Admitted

21 City Exhibit A.................. 11 36

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER HALLORAN: Hi.

2 Good morning -- excuse me -- good afternoon.

3 My name is Brad Halloran. I'm a hearing

4 officer with the Illinois Pollution Control

5 Board and I'm also assigned to this matter,

6 which is entitled City of Chicago Department

7 of Environment, Complainant, versus City Wide

8 Disposal, Inc., Respondent, Administrative

9 Citation 03-11.

10 I also want to note for the

11 record that today is June 3, 2003. It's

12 approximately 1:15 p.m. This administrative

13 citation that was filed by the city alleges

14 that during an inspection of August 28, 2002,

15 it was determined that respondent violated

16 Sections 21(p)(1) and 21(p)(7) of the Act.

17 As a result of the August 28,

18 2002, inspection and subsequent administrative

19 citation, respondent filed a petition for

20 review disputing the violations and that's

21 why we are here today. This matter has been

22 noticed pursuant to the Board's regulations

23 and will be conducted in accordance with

24 Subsection 108, Subpart (b) and Subsection 101,

L.A. REPORTING (312) 419-9292

1 Subpart (f).

2 Also, note for the record I will

3 not be making the ultimate decision in the case.

4 That decision is left up to the board members.

5 My job is to ensure an orderly hearing, a clear

6 record, and rule on any evidentiary matters.

7 With that said, Mr. King, would

8 you like to introduce yourself, please?

9 MR. KING: I'm Charles King, Assistant

10 Corporation Counsel with the Chicago Department

11 of Law, representing the City of Chicago

12 Department of Environment.

13 HEARING OFFICER HALLORAN: Thank you.

14 Mr. Pirok?

15 MR. PIROK: My name is Ed Pirok and

16 I represent the respondent in this case, City

17 Wide.

18 HEARING OFFICER HALLORAN: Any

19 preliminary issues before we go on to opening

20 arguments or statements?

21 MR. KING: I don't believe so.

22 HEARING OFFICER HALLORAN: Okay.

23 MR. KING: Will we have an opportunity

24 to file briefs after the hearing?

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER HALLORAN: Oh, yes,

2 you will.

3 MR. KING: Okay. Then I'll waive.

4 HEARING OFFICER HALLORAN: You'll

5 waive your opening?

6 MR. KING: Yes, yes.

7 HEARING OFFICER HALLORAN: Mr. Pirok?

8 MR. PIROK: I'll waive my opening as

9 well.

10 HEARING OFFICER HALLORAN: Okay.

11 Terrific.

12 Mr. King, call your first witness

13 and I think we're going to have him seated --

14 off the record.

15 (Whereupon, a discussion

16 was had off the record.)

17 HEARING OFFICER HALLORAN: Lori, can

18 you swear in the witness, please?

19 THE COURT REPORTER: Would you raise

20 your right hand, please?

21 Do you swear the testimony you

22 are about to give is the truth, the whole truth

23 and nothing but the truth, so help you God?

24 MR. ROBERTSON: I do.

L.A. REPORTING (312) 419-9292

1 (Witness sworn.)

2 MR. KING: I have one thing before we

3 start. Can we go off the record?

4 HEARING OFFICER HALLORAN: Off the

5 record.

6 (Whereupon, a discussion

7 was had off the record.)

8 HEARING OFFICER HALLORAN: All right.

9 We're back on the record.

10 WHEREUPON:

11 L A F A Y E T T E R O B E R T S O N

12 called as a witness herein, having been first duly

13 sworn, deposeth and saith as follows:

14 D I R E C T E X A M I N A T I O N

15 by Mr. King

16 Q. All right. Would you please state

17 your name?

18 A. Lafayette Theo Robertson.

19 Q. Mr. Robertson, what is your

20 occupation?

21 A. Supervisor with the Department

22 of Environment, City of Chicago.

23 Q. How long have you been a supervisor

24 with the Department of Environment?

L.A. REPORTING (312) 419-9292

1 A. Approximately two and a half years.

2 Q. What are your duties in that position?

3 A. My duties are to enforce environmental

4 codes for the city and the state of Illinois.

5 Q. What sorts of activities does your job

6 entail?

7 A. Inspections, surveillance, monitoring

8 businesses for illegal dumping and also pollution.

9 Q. What sorts of training have you had to

10 prepare you to undertake this job?

11 A. I was certified by the U.S. EPA in

12 site inspections back in 1995. I'm also certified

13 by the state of Illinois back in 1997 for site

14 assessments and open dumping.

15 Q. Approximately how many inspections do

16 you perform in a typical week?

17 A. Ten to 12.

18 Q. So in two and a half years that you

19 have been doing your job, would it be safe to say

20 that you have been performing hundreds of

21 inspections?

22 A. That's correct.

23 Q. And were you working on August 28th of

24 last year?

L.A. REPORTING (312) 419-9292

1 A. Yes.

2 Q. Do you recall what you did on that of

3 afternoon?

4 A. Yes.

5 Q. What was that?

6 A. At approximately 2:55 p.m., I arrived

7 at 3910 South Loomis, which was the business site of

8 City Wide Disposal. I drove my vehicle to the rear

9 of the property, which is located on the southwest

10 side of the property. I observed some dumping of

11 construction debris on the grounds of the site.

12 Q. What brought you to that site on that

13 day?

14 A. That was a routine inspection.

15 Q. Now, when you say "routine

16 inspection," what do you mean?

17 A. We go out on routine inspections from

18 previous complaints and inspection sites for cleanup

19 or prior dumping.

20 Q. So had there been some prior

21 involvement with City Wide that brought you there

22 on that date?

23 A. Yes.

24 Q. How often did you inspect them?

L.A. REPORTING (312) 419-9292

1 A. Numerous times.

2 Q. In regard to the routine inspection,

3 like the one that you said you did on the 28th,

4 what was the routine that involved that?

5 A. Going out there, checking the site

6 grounds and making sure that there was no illegal

7 transfer station operations on that site.

8 HEARING OFFICER HALLORAN: Mr. King,

9 excuse me.

10 Lori, let's go off the record.

11 (Whereupon, a discussion

12 was had off the record.)

13 HEARING OFFICER HALLORAN: We're

14 back on. Sorry, Mr. King.

15 BY MR. KING:

16 Q. What is City Wide's business, to your

17 understanding?

18 A. They are a dumpster company. They

19 pick up waste from different businesses or

20 construction sites and load the material -- have

21 the material loaded in their dumpsters by their

22 clients and literally take the waste to a transfer

23 station.

24 Q. All right. Now, on the date that you

L.A. REPORTING (312) 419-9292

1 went out there on August 28th, what did you do after

2 you arrived at the site?

3 A. I took photos of what I saw. I made

4 my notes. Then I went to the business office of

5 City Wide Disposal.

6 Q. What did you see and what did you take

7 pictures of?

8 A. I took photos of construction debris

9 that was on the grounds of the site not stored in

10 roll-off boxes. They were at a tipping location or

11 floor on the grounds of the site.

12 (Document marked as

13 City Exhibit A

14 for identification, 6/3/03.)

15 BY MR. KING:

16 Q. All right. I'm going to hand you

17 something that I have marked as City Exhibit A for

18 identification.

19 MR. PIROK: Thank you.

20 BY MR. KING:

21 Q. Can you identify this document?

22 (Document tendered

23 to the witness.)

L.A. REPORTING (312) 419-9292

1 BY THE WITNESS:

2 A. Yes. This is an Illinois

3 Environmental Protection Agency Open Dump Inspection

4 Checklist that I prepared.

5 BY MR. KING:

6 Q. How many pages is that?

7 A. Approximately ten pages.

8 Q. Turning your attention to the last

9 four pages, which appears to be a series of

10 photographs, are those photographs that you took --

11 A. Correct. These are my photographs.

12 Q. -- that you mentioned just recently on

13 August 28th at the site?

14 A. Correct.

15 Q. I would like to state just for the

16 record that this -- this document was attached to

17 the administrative citation filed with the Board

18 and that these original color photographs are a

19 part of that document. So they are in the Board's

20 file.

21 HEARING OFFICER HALLORAN: So noted.

22 Thank you.

23 BY MR. KING:

24 Q. After you did your inspection and took

L.A. REPORTING (312) 419-9292

1 the photographs, what did you do then?

2 A. I went to the office of City Wide

3 Disposal.

4 Q. What did you do there?

5 A. I asked for the owner/operator where I

6 meant Anthony Barbara.

7 Q. And did you have a conversation with

8 Mr. Barbara?

9 A. Yes, I did.

10 Q. And what was the substance of that

11 conversation?

12 A. One, about the waste being on the

13 grounds, which was an illegal act; and two, did

14 they have a permit for a transfer station operation.

15 Q. And what did he say to you?

16 A. He didn't have one at that time.

17 Q. Did he say anything about the waste on

18 the ground?

19 A. Yes. He stated that his -- it was

20 unknown to him that his employees put the waste

21 back there, dumped the waste back there.

22 Q. Did you investigate whether or not

23 City Wide had a permit?

24 A. Yes.

L.A. REPORTING (312) 419-9292

1 Q. Were you able to determine whether

2 they did or not?

3 A. Yes, they did not.

4 Q. They did not have a permit?

5 A. They did not.

6 Q. Did you have occasion to discuss

7 City Wide's responsibility for that piece of

8 property?

9 A. Yes.

10 Q. Who did you discuss that with?

11 A. With the owner/operator, Anthony

12 Barbara.

13 Q. What did he have to say on that

14 subject?

15 A. That he didn't own the property, he

16 just leased the property.

17 Q. Could you describe for us the layout

18 of the site of the facility and if it would help

19 you, please feel free to refer to -- to City Exhibit

20 A.

21 A. All right. I have in the report two

22 site sketches. One is showing a pictorial of the

23 streets and where the site is located. The site

24 is located on South Loomis Street.

L.A. REPORTING (312) 419-9292

1 I have an overhead aerial diagram,

2 which is provided off of the internet. This is

3 showing you the photos of the aerial of the site,

4 the street, and how to get into the site. This is

5 also showing the dump area of the -- of basically

6 you take 39th Street or Pershing Road and you go to

7 Loomis Street, which is southwest, you drive in on

8 South Loomis Street southbound. You drive all the

9 way to the end of the site where there is a gate.

10 There is an open gate on the site. You drive back

11 through that area or lot and you will see City Wide

12 storage boxes, trucks and also the tipping area or

13 tipping floor.

14 Q. Now, when you refer to an aerial

15 photograph, are you referring to the one that's

16 on -- I believe it's on the seventh page of City

17 Exhibit A?

18 A. Yes.

19 Q. Is that an accurate depiction of the

20 site?

21 A. Yes.

22 Q. I would like for you to take this pen

23 and on your copy there, I would like for you to draw

24 an arrow to where the entrance of the site is.

L.A. REPORTING (312) 419-9292

1 A. It's right here (indicating). The

2 entrance to 39th Street is right here (indicating).

3 Q. Okay. Draw an arrow there and if you

4 could, write entrance out there in the margin and

5 put a little arrow.

6 A. Okay. That would be the entrance

7 (indicating).

8 Q. All right. Now, could you also please

9 indicate on there the location of their office?

10 A. No. This is, like, two -- their

11 offices are right here, approximately right here

12 (indicating). I will put an X here (indicating)

13 and office here (indicating).

14 Q. All right. Mr. Robertson has put an X

15 on the photograph.

16 Finally, would you indicate where

17 you observed the material in that particular

18 photograph?

19 A. The materials are located here and

20 here (indicating). I will just put material dump

21 waste here (indicating).

22 HEARING OFFICER HALLORAN: Could we

23 have Mr. Pirok take a look at that, please?

24 MR. KING: Certainly.

L.A. REPORTING (312) 419-9292

1 MR. PIROK: Thank you. Thank you very

2 much.

3 BY MR. KING:

4 Q. All right. You mentioned -- strike

5 that.

6 Is there any accessway to the

7 area where you saw the materials dumped besides

8 the entrance that you indicated on the exhibit?

9 A. The only entrance, to my knowledge,

10 is off of 38th Street on Pershing Road southbound

11 on Loomis Street directly back to the site. The

12 site is boundaried by railroad tracks and fences.

13 Q. Is -- does the road that gives access

14 to the site go by the office?

15 A. Yes.

16 Q. Would someone in the office be able to

17 see any traffic going into or out of the site?

18 A. Yes. They have a very large picture

19 window where they could view through the window of

20 trucks entering or exiting the site area or the

21 yard.

22 Q. Do you know City Wide's hours of

23 operation at that site?

24 A. To my knowledge, it was pretty much 24

L.A. REPORTING (312) 419-9292

1 hours.

2 Q. Now, I would like to direct your

3 attention again back to the four photographs that

4 are at the end of Exhibit A. Referring to each of

5 the photographs, could you please describe in more

6 detail when they depict?

7 A. All right. Photograph one showing

8 construction debris of concrete blocks and wooden

9 pallets on the grounds of the site at the rear of

10 the tipping area.

11 Photo number two shows the same

12 site at a different angle, more construction

13 material, which is wood, brick, concrete blocks.

14 That's what's in photo two.

15 Q. All right.

16 A. Photo three is showing a closer view

17 of the back area of the tipping floor. It's showing

18 concrete blocks, dirt and concrete and brick, which

19 is solid waste debris.

20 Photo four is showing a more solid

21 or larger concrete debris mixed with scrap metal

22 that is dumped on the site at that time.

23 Q. Now, this picture depicts some

24 ribbon-like material.

L.A. REPORTING (312) 419-9292

1 A. That's metal. That's scrap metal.

2 Q. All right. All total, approximately

3 how much material did you observe?

4 A. Approximately 100 cubic yards of waste

5 debris was dumped on the grounds of the site.

6 Q. City Exhibit A, did you prepare this

7 document?

8 A. Yes.

9 Q. When did you prepare it?

10 A. The following day with my notes.

11 Q. Okay. Thanks.

12 MR. KING: I have no further questions

13 for Mr. Robertson.

14 HEARING OFFICER HALLORAN: Thank you.

15 Mr. Pirok?

16 C R O S S - E X A M I N A T I O N

17 by Mr. Pirok

18 Q. Mr. Robertson, City Wide does not own

19 the property, does it?

20 A. That's correct.

21 Q. You were referring to the area as a

22 use of an open pit in your report. What do you mean

23 by -- how did you determine the use of the open pit

24 or what do you mean by the open pit?

L.A. REPORTING (312) 419-9292

1 A. What I mean by the open pit is it's

2 like a tipping floor back there. It's an area that

3 is smoothed out. They have a pit where material can

4 go down into it and then they have a pit area that's

5 above grade a little bit.

6 I will give you an example, sir.

7 If we go back to photo one, sir, the pit area that

8 I'm referring to is above grade right here,

9 (indicating) which is photo one. These are photos

10 one through four. To the south of it, there is a

11 little trench area also there.

12 Q. How much of a depression is the pit

13 area?

14 How far down does it go from the

15 grade area?

16 A. Approximately one to two feet

17 depending upon how it's dug -- dug into.

18 Q. In your report, you indicated that the

19 investigator will speak with the supervisors about

20 the above business operations.

21 What did you mean by that

22 notation?

23 A. Well, counsel, I have a -- my

24 supervisor that I have to report to, I had to

L.A. REPORTING (312) 419-9292

1 give him my insight of what I saw and I'm supervised

2 by my superiors on how to best direct my next steps.

3 Q. Okay. Did you, in fact, consult with

4 supervisors with respect to this?

5 A. Yes.

6 Q. Who did you consult?

7 A. Johnna Potthoff.

8 Q. What were his instructions to you, if

9 any?

10 A. Her instructions were --

11 Q. I'm sorry. Her.

12 A. -- if there were violations, to ticket

13 as warranted.

14 Q. Had you been on this site the day

15 before August 27th, 2002?

16 A. I don't believe so, counsel. I was

17 there numerous times earlier.

18 Q. Were you there on the 26th?

19 A. I don't have any records to that note

20 that I was there on the 26th.

21 Q. To the best of your recollection, as

22 you sit here today, sir, before the 28th, when was

23 the last time you were there?

24 A. The last time I was there was on

L.A. REPORTING (312) 419-9292

1 March the 6th of '02, which is indicated on the

2 top right-hand corner of my inspection report.

3 Q. The last time you were there was

4 March 6, 2002, and then you were there on August

5 28, 2002. When did you next return?

6 A. I returned several times, I think. I

7 don't have the dates in front of me.

8 Q. Do you know if it was the next day?

9 A. I don't believe it was the next day.

10 Q. Was it the day after?

11 A. I don't recall, counsel.

12 Q. Is it indicated anywhere in your

13 report? I see that on the bottom of the page, it

14 says, "Note, Investigator L. Robertson, returned

15 on 9/5/02 and issued," et cetera.

16 Would that be the next date that

17 you returned?

18 A. What date do you have, sir?

19 Q. On your report there, on the part that

20 says narrative, it says, see attachments.

21 Underneath there, it says, "Note, Investigator L.

22 Robertson, returned on 9/5/02 and issued a ticket."

23 A. Okay. That's correct. That's

24 September.

L.A. REPORTING (312) 419-9292

1 Q. Okay. Would that be the next time you

2 were there, about a week later?

3 A. Yes.

4 Q. About a week later?

5 A. Yes.

6 Q. When you were there a week later,

7 was any of this debris or anything that you

8 described present as shown in these photographs?

9 A. I don't recall if the debris was

10 still there on 9/5. My job was to issue the NOVs.

11 Q. Did you look on 9/5, if you recall?

12 A. I don't recall.

13 Q. Is there any reason it took seven days

14 to issue the citation?

15 A. Normally, once again, I report to my

16 supervisors. They have the right to overrule me or

17 sit down with other counsel and talk about it and

18 see what they want to do. I just want to hear what

19 they have to say.

20 Q. But when you reported it to this lady,

21 you reported it on the 28th, didn't you?

22 A. Yes.

23 Q. 2002?

24 A. Yes.

L.A. REPORTING (312) 419-9292

1 Q. She gave you the permission to issue

2 the ticket on that date, didn't she?

3 A. I don't think we issued a ticket on

4 that date. I returned because we needed to talk

5 about this.

6 Q. But what I was asking you earlier,

7 she authorized you on that date on the 28th to issue

8 the ticket, didn't she? That's what I understood as

9 your prior testimony.

10 A. Okay. Well, even if they authorize us

11 to issue a ticket, sometimes you have to go back in

12 and talk about a situation.

13 Q. Did she, in fact, authorize you to

14 issue a citation when you spoke with her on the

15 28th?

16 A. I think so.

17 Q. Normally, in the normal course of

18 operations, don't you either issue the citation

19 right on the spot there as soon as you get

20 permission or not at all?

21 A. Say it again, counsel.

22 Q. Sure. Under the normal operating

23 procedures, wouldn't you normally issue the citation

24 as soon as you got the authorization right on the

L.A. REPORTING (312) 419-9292

1 spot or not at all?

2 A. This was a different situation,

3 counsel, seeing that we had this problem with City

4 Wide before. I wanted to go in and see if we could

5 talk about this and sometimes a ticket -- you can

6 do other things other than a ticket. You can bring

7 people in, have meetings with them, that type of

8 thing.

9 Q. Okay. Now, you haven't observed

10 yourself any problems with City Wide from March 6,

11 2002, prior to your inspection on August 28th, 2002,

12 had you?

13 A. I can't recall. I can't recall except

14 for March 6th.

15 Q. Okay. So you were there on March 6th

16 and you were never back until August 28th?

17 A. I believe that's correct.

18 Q. Until that time, you were not aware

19 of any problems with dumping or transfer stations

20 or anything with City Wide, were you?

21 A. That's correct.

22 Q. Okay. Did you actually observe

23 anything being placed on the ground when you were

24 there on the 28th?

L.A. REPORTING (312) 419-9292

1 A. Did I see a person putting waste on

2 the ground?

3 Q. Yes.

4 A. No.

5 Q. Or a truck?

6 A. No.

7 Q. You did not?

8 A. No.

9 Q. Directing your attention to your first

10 picture there, sir.

11 A. Okay.

12 Q. That's a relatively small pile of

13 C and D, isn't it, in terms of transfer station?

14 A. I wouldn't say so.

15 Q. Well, in your experience on transfer

16 stations, don't they have, like, huge mountains of

17 C and D?

18 A. On a permitted transfer station,

19 you expect to see that because they are operating

20 on a daily basis under a permit.

21 Q. Those are just like huge mountains,

22 aren't they?

23 A. It depends on operations for that

24 date. It could be huge one day and it could be

L.A. REPORTING (312) 419-9292

1 low the next day. It depends on what is going on.

2 Q. What would the lowest one be, like,

3 how many cubic yards?

4 A. Oh, I couldn't tell you. I don't

5 know.

6 Q. Well, it could be thousands and

7 thousands of cubic yards even on a small day,

8 couldn't it?

9 A. Well, that depends on the size of the

10 site, the area, if they've got a lot that may be

11 ten acres in size. It depends.

12 Q. What's the smallest you have ever

13 observed?

14 A. The smallest?

15 Q. On a really off day or a low day at a

16 transfer station, how many cubic yards or how many

17 thousands of cubic yards would you say?

18 A. On a low day, I would say maybe about

19 20.

20 Q. About 20,000 cubic yards, right?

21 A. Yes.

22 Q. What about on a big day?

23 A. Well, they have mountains, like you

24 said.

L.A. REPORTING (312) 419-9292

1 Q. Okay. Did you see any other waste

2 storage in addition to what is shown in these

3 photographs on that date?

4 A. No.

5 Q. Okay. Would it be fair to

6 characterize this as about a truckload of C and D?

7 A. No. Counsel, due to the fact -- I

8 mean, I don't know what you mean by truckload.

9 What do you call a truckload?

10 Q. A truck.

11 A. What's a truckload. I don't

12 understand, counsel.

13 Q. A big truck that they use for these

14 transfer stations.

15 A. Getting back to City Wide, counsel,

16 they use 48-cubic-yard boxes.

17 Is that what you mean, counsel?

18 Q. No. What I'm asking is the mountain

19 that you see here in this photo, is that dumped by

20 one vehicle?

21 A. I don't believe so.

22 Q. How many vehicles do you think it

23 would take?

24 A. I think two or three.

L.A. REPORTING (312) 419-9292

1 Q. Now, you didn't see any disposal of

2 waste at this site, did you?

3 A. Yes. Once you put it on the ground,

4 that's disposal.

5 Q. I'm sorry. Other than what you saw

6 on the ground here these two or three truckloads, in

7 your view, did you see any other waste disposal on

8 this site?

9 A. No.

10 Q. Now, other than observing what's in

11 these photographs with the truckloads of waste in

12 what you described as the pit area that's a couple

13 of feet down, did you see any other violation of the

14 act or the regulations?

15 A. No.

16 Q. How would you define litter?

17 MR. KING: Objection. He is asking

18 for a legal conclusion.

19 HEARING OFFICER HALLORAN: Mr. Pirok?

20 MR. PIROK: I think he cites in his

21 report litter and I think his characterization

22 his understanding of what litter is is relevant.

23 HEARING OFFICER HALLORAN: I'll

24 overrule that. The Board is more than capable

L.A. REPORTING (312) 419-9292

1 of knowing what litter is. He can answer if

2 he is able.

3 BY THE WITNESS:

4 A. Litter could be paper or it could be

5 cans or it could be residual waste.

6 BY MR. PIROK:

7 Q. Is there any other litter other than

8 this C and D that's shown on the photograph?

9 A. Yes. You have wood, you have scrap

10 metal, and that's in the piles.

11 Q. Okay. But is there any other litter

12 other than what is shown here in the pile?

13 A. No.

14 Q. If a driver put down this load that's

15 pictured here by mistake instead of sending it to a

16 transfer station three blocks away, in your view,

17 would it be fair to say that City Wide did not cause

18 or allow the disposal of solid waste?

19 MR. KING: Objection. He is calling

20 for a legal conclusion.

21 HEARING OFFICER HALLORAN: Mr. Pirok?

22 MR. PIROK: In his experience, he is

23 experienced in enforcing the regulations. He

24 is experienced in citing it, using common sense,

L.A. REPORTING (312) 419-9292

1 the interpretations that are made in his daily

2 work, he issues citations to determine whether

3 there is a violation or not. If this

4 circumstance were true, would this constitute

5 a violation?

6 HEARING OFFICER HALLORAN: I will

7 sustain the objection.

8 MR. PIROK: Okay.

9 BY MR. PIROK:

10 Q. If this load that's pictured here were

11 put down by mistake, would it be fair to say that

12 City Wide was not causing or allowing the operation

13 of a waste handling facility?

14 MR. KING: Objection. Again,

15 whatever the legal definition of these

16 things are, either the facts fit or they

17 don't.

18 HEARING OFFICER HALLORAN: Well,

19 that's not quite the same. Mr. Pirok?

20 MR. PIROK: Essentially, I'm asking

21 him, you know, under certain circumstances,

22 if there are certain changes would that

23 constitute a violation, in your view, is that

24 something you would issue a citation for or

L.A. REPORTING (312) 419-9292

1 would you request an opinion from your

2 supervisor whether you could issue a

3 citation?

4 HEARING OFFICER HALLORAN: Here's

5 what I'm going to do. We're going to wrap

6 this line of questioning up. I'll allow

7 the witness to answer.

8 I'll overrule the objection,

9 but again, I think the Board is more than

10 capable of knowing the definition of causing

11 or allowing litter. I will allow the

12 complainant to answer that and we can move

13 on.

14 BY THE WITNESS:

15 A. Okay. Can you restate your question,

16 counsel?

17 HEARING OFFICER HALLORAN: Lori, could

18 you read the question back, please?

19 (Whereupon, the requested

20 portion of the record

21 was read accordingly.)

22 BY THE WITNESS:

23 A. Okay. My understanding is that

24 City Wide Disposal is responsible for their

L.A. REPORTING (312) 419-9292

1 business operations and their employees. They

2 are responsible. If you go to photo two and look

3 at the elongated shot, if it was put down by

4 mistake, then, several piles were put down by

5 mistake, which I don't believe it was a mistake.

6 This was planned, caused and allowed.

7 BY MR. PIROK:

8 Q. Okay.

9 A. So if you go to photo two and look at

10 the elongated photo, you will see -- in the darkened

11 area, you will see more waste and debris.

12 Q. Would it be fair to characterize

13 the amount of debris that's shown in these photos

14 as a minor amount of debris with respect to a

15 transfer station?

16 MR. KING: Now, as to this, I'm

17 going to object on the grounds of relevance.

18 There is no amount requirement for any of

19 the violations that we have alleged here.

20 There is no diminimus exception.

21 HEARING OFFICER HALLORAN: I think

22 we have gone over this, Mr. Pirok, earlier.

23 MR. PIROK: I will withdraw the

24 question.

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER HALLORAN: Thank

2 you very much.

3 BY MR. PIROK:

4 Q. To your knowledge does City Wide

5 use Shred-All on 43rd Street as its transfer

6 station?

7 A. What do you mean, counsel? Can you --

8 Q. To your knowledge, does City Wide use

9 Shred-All Disposal on 43rd Street as its transfer

10 station?

11 A. Not to my knowledge.

12 Q. Does Shred-All have a transfer station

13 on 43rd Street?

14 A. Yes.

15 Q. And, in fact, Shred-All has two

16 stations there, do they not?

17 A. I just know it as Shred-All.

18 Q. Do they have a front and back that

19 they separately designate?

20 A. Probably.

21 Q. You've been there, right?

22 A. Yeah. I've been there.

23 Q. Many times?

24 A. Not lately, though.

L.A. REPORTING (312) 419-9292

1 Q. But they have a front and back?

2 A. Yes.

3 Q. They have a front and back area to

4 dump?

5 A. They have a front and back, if that's

6 what you mean. The overall site, is that what you

7 are talking about, counsel?

8 Q. What I'm saying is when you go into

9 that site, they've got two spots and they call one

10 the front and one the back.

11 A. Okay.

12 Q. And they direct you to go to one of

13 these.

14 A. Sometimes they change their sites.

15 Q. All right. As you sit here today,

16 from your recollection of the Shred-All facility

17 at 43rd, do they have a back and front site for

18 dumping, if you know?

19 A. Like I said, I haven't been there in

20 quite a while, counsel.

21 MR. PIROK: Okay. I have nothing

22 further.

23 HEARING OFFICER HALLORAN: Thank

24 you, Mr. Pirok.

L.A. REPORTING (312) 419-9292

1 Mr. King, do you have any

2 redirect?

3 MR. KING: I have no further

4 questions, but I would move for admission

5 of City Exhibit 1 or Complainant's Exhibit

6 A, however you want to define it.

7 HEARING OFFICER HALLORAN: Mr. Pirok?

8 MR. PIROK: No objection.

9 HEARING OFFICER HALLORAN: Okay.

10 City Exhibit A is admitted into

11 evidence.

12 (Whereupon, City

13 Exhibit A has been

14 admitted into evidence.)

15 HEARING OFFICER HALLORAN: Thank you.

16 THE WITNESS: Thank you.

17 (Witness excused.)

18 HEARING OFFICER HALLORAN: Anything

19 further, Mr. King?

20 MR. KING: No.

21 HEARING OFFICER HALLORAN: Are you

22 resting?

23 MR. KING: Yes.

24 (Complainant rests.)

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER HALLORAN: All right.

2 Mr. Pirok?

3 MR. PIROK: I would like to call

4 Mr. Anthony Barbara first.

5 HEARING OFFICER HALLORAN: Okay.

6 Sir, raise your right hand and Lori will swear

7 you in, please.

8 THE COURT REPORTER: Would you raise

9 your right hand, please?

10 Do you swear the testimony you

11 are about to give is the truth, the whole truth

12 and nothing but the truth, so help you God?

13 MR. BARBARA: Yes.

14 (Witness sworn.)

15 WHEREUPON:

16 A N T H O N Y B A R B A R A

17 called as a witness herein, having been first duly

18 sworn, deposeth and saith as follows:

19 D I R E C T E X A M I N A T I O N

20 by Mr. Pirok

21 Q. Would you state your name, sir?

22 A. Anthony Barbara.

23 Q. And what is your address?

24 A. 3910 South Loomis.

L.A. REPORTING (312) 419-9292

1 Q. And what is your position with City

2 Wide?

3 A. Owner.

4 Q. Do you own the property at 3910 South

5 Loomis in Chicago?

6 A. No, I don't, sir. I lease it along

7 with four other companies that lease inside that

8 property also.

9 Q. Who are the other companies?

10 A. Vanick Brothers, White Express, Fakaro

11 Trucking and RTP Leasing.

12 Q. Do they have access to the grounds?

13 A. Correct.

14 Q. Who is, in fact, the owner of the

15 property, if you know?

16 A. Mike Vanick.

17 Q. Did you speak with Investigator

18 Robertson on August 28, 2002, at any time?

19 A. Correct.

20 Q. Did you at any point advise

21 Investigator Robertson that you did not know that

22 the driver had dumped the construction debris

23 that's shown in these photographs in Exhibit A?

24 A. Correct. For the short time that

L.A. REPORTING (312) 419-9292

1 he was there, I informed him that I did not know

2 about it.

3 Q. Do you recall what the sum and

4 substance of the conversation with him was?

5 What did he say he was there for?

6 A. What I recall is when I met him in the

7 front office, he stated there was a load dumped in

8 the back. I stated back to him that I knew nothing

9 about it. That's pretty much my recollection. He

10 then got in his car and left after that.

11 Q. Okay. Did you have any further

12 discussion with him about it?

13 A. No.

14 Q. What did you do then?

15 A. I, myself, went to the back to observe

16 what Mr. Robertson was referring to and had a

17 laborer and some equipment and a box and loaded it

18 up and cleaned it up as best as we could and took

19 it to Shred-All Recycling.

20 Q. On April 28, 2002, did you have a

21 contract with Shred-All Recycling?

22 A. Yes.

23 Q. And what did they provide for you by

24 that contract?

L.A. REPORTING (312) 419-9292

1 A. A transfer station on the back parcel

2 of their land to dump.

3 Q. Where is that located?

4 A. 43rd and Racine.

5 Q. Do they have two areas designated in

6 that dump on 43rd, the transfer station on 43rd?

7 A. Correct. They have two separate

8 transfer stations.

9 Q. How are they designated, if you know?

10 A. One is right in the front as you pull

11 into the right. If you continue straight off the

12 scales and go towards the back, there is another

13 additional building. It's a permanent transfer

14 station.

15 Q. Is it referred to as the front and the

16 back when given instructions?

17 A. Correct. You go in there and they

18 tell you what direction to go, the front or the

19 back.

20 Q. Okay. How many vehicles did it take

21 you to remove this debris?

22 A. One.

23 Q. You removed all of the debris shown in

24 these photographs with one truckload?

L.A. REPORTING (312) 419-9292

1 A. Correct, one truck.

2 Q. What was the size of that truck?

3 A. I'd say it was a 20-yard dumpster that

4 we loaded it on.

5 Q. Did you do any further investigation

6 of how that material got there?

7 A. Correct.

8 Q. What did you do?

9 A. After I talked to the dispatcher and a

10 couple of drivers, I found out it was a fill-in

11 driver that works for us part-time. There was a

12 miscommunication between him and the dispatcher.

13 When he was done with his load pick, picking the

14 load up, the dispatcher told him to dump it in the

15 back meaning the back of Shred-All Recycling on 43rd

16 and Racine.

17 Because of the miscommunication

18 and since he doesn't work for us all of the time,

19 he took it upon himself to dump it in the back at

20 39th Street.

21 Q. Which is your property -- which is the

22 property that you lease?

23 A. Correct. And I also asked them -- you

24 know, I asked dispatch did you see him and due to

L.A. REPORTING (312) 419-9292

1 the heavy traffic in the yard and four additional

2 companies using the yard, there were trucks blocking

3 the window, and he did not observe the gentleman

4 come in and dump the load.

5 Q. What is your dispatcher's name?

6 A. Dominick.

7 Q. Last name?

8 A. Falano.

9 Q. How long has he worked as your

10 dispatcher?

11 A. Probably two years.

12 Q. In the normal custom and practice of

13 your business, does Dominick direct people bringing

14 truckloads of C and D to any particular transfer

15 station?

16 A. Yes.

17 Q. What transfer entrance does he direct

18 people to?

19 A. Shred-All.

20 Q. How long prior to August 28 of 2002

21 did he do that?

22 A. I would say four months approximately.

23 Q. As a matter of custom and practice,

24 would Dominick tell them which transfer station at

L.A. REPORTING (312) 419-9292

1 Shred-All he should send it to, the front or the

2 back, or didn't he care?

3 A. He would refer to them to go to the

4 back.

5 Q. What was the reason for that, for

6 going to the back?

7 A. That's the one we are contracted to

8 dump at.

9 Q. So you were not able to dump in the

10 front one?

11 A. No.

12 Q. You had to go to the back?

13 A. We had to go in the back.

14 Q. Did you speak with anyone else

15 concerning what had happened?

16 Well, let me ask you this; what

17 did you find out from Dominick?

18 A. I found out he told him to -- he

19 dispatched the driver to dump in the back. Once

20 I talked to the driver and found out his story,

21 I asked Dominick if he told him in the back at

22 43rd Street or did you just tell him in the back.

23 He said he just told him in the back. He did not

24 specifically tell him 43rd Street.

L.A. REPORTING (312) 419-9292

1 Q. Who was the driver?

2 A. Orhelio Garcia.

3 Q. What was sum and substance of your

4 conversation with Mr. Garcia?

5 A. It was why did you dump it in the

6 back? He said the dispatcher, Dominick, told him to

7 dump it in the back. I told him we're not supposed

8 to dump it in the back. He took it upon himself,

9 because he is part-time worker, he doesn't work for

10 us all the time, that we meant in the back by us.

11 Q. As owner of City Wide on August 28th

12 of 2002, did you cause or allow the dumping of

13 C and D to occur on your property?

14 A. No.

15 Q. Would it be fair to say that your

16 business operation was such that any such C and D

17 that came onto the property would be sent to the

18 transfer station that you had a contract with,

19 Shred-All Recycling?

20 A. Correct.

21 Q. Were other trucks that came in with

22 construction debris, let us say, on that day or four

23 months before and subsequent up to the present time

24 sent to Shred-All?

L.A. REPORTING (312) 419-9292

1 A. Correct.

2 Q. All of them?

3 A. Oh, yes. All of them are. We dump

4 at some other transfer stations that are at Melrose

5 Park, but everything in the city goes to Shred-All

6 Recycling.

7 Q. In your opinion, was it an

8 uncontrollable circumstance that there was a

9 miscommunication between your dispatcher and

10 Mr. Garcia?

11 A. Yes. There was definitely a

12 miscommunication.

13 Q. What measures, if any, did you take to

14 stop any future miscommunications or occurrences of

15 this nature?

16 A. I explained to all of the part-time

17 drivers what we mean by back and explained to the

18 dispatcher when you say the back, say 43rd Street

19 and also posted it on a sheet of paper stating

20 what I just said in the dispatch room.

21 Q. Do you recall the next time -- strike

22 that.

23 Do you recall any other

24 conversation on August 28th that you had with

L.A. REPORTING (312) 419-9292

1 Investigator Robertson?

2 A. I'm sorry. On August?

3 Q. 28th. The day that he first came to

4 you and said, hey, I found the C and D in the back?

5 A. No other conversation.

6 Q. Did Mr. Robertson give you any

7 instructions?

8 A. No.

9 Q. Did he seem to be in a hurry, or did

10 he stick around to discuss things with you?

11 A. No. He was pretty much in a hurry to

12 leave.

13 Q. When was the next time that you spoke

14 with him about this instance?

15 A. I believe it was the following day

16 when he came back and wrote the tickets.

17 Q. The following day that he came back

18 and wrote the tickets?

19 A. Either the following day or a couple

20 of days later, to the best of my recollection.

21 Q. Do you recall what the sum and

22 substance of your conversation was at that time?

23 A. Pretty much that he seen a load of

24 debris in the back and said it was our

L.A. REPORTING (312) 419-9292

1 responsibility and he was citing us a ticket for it.

2 Q. Did you explain the circumstances to

3 him at the time he gave you the citation?

4 A. Correct.

5 Q. What, if any, reply did you make to

6 you?

7 A. That he has to do his job and write

8 the citation.

9 MR. PIROK: I have nothing further.

10 Thank you very much.

11 HEARING OFFICER HALLORAN: Thank you.

12 Mr. King, do you have any cross?

13 MR. KING: Yes.

14 C R O S S - E X A M I N A T I O N

15 by Mr. King

16 Q. Did anyone besides -- to your

17 knowledge, did anyone besides Mr. Garcia dump any

18 material back there?

19 A. No.

20 Q. Did Mr. Garcia dump more than one load

21 back there, to your knowledge?

22 A. No, only one load.

23 Q. What are the terms of your contract

24 with Shred-All?

L.A. REPORTING (312) 419-9292

1 A. They were allowed to, for a specific

2 price, bring in material to their transfer station

3 in the back at 43rd and Racine.

4 Q. How is that billed?

5 A. How is it billed?

6 Q. Yes.

7 A. An invoice, are you asking about?

8 Q. Do they bill you per load, by weight,

9 by volume?

10 A. Depending on the material, some is

11 by the load and other material is by the weight, by

12 the ton.

13 MR. KING: Okay. That's all I have.

14 HEARING OFFICER HALLORAN: Any

15 redirect?

16 MR. PIROK: None.

17 HEARING OFFICER HALLORAN: You may

18 step down. Thank you.

19 THE WITNESS: Thank you.

20 (Witness excused.)

21 MR. PIROK: The respondent will call

22 Mr. Orhelio Garcia.

23 HEARING OFFICER HALLORAN: Okay.

24 Mr. Garcia, raise your right hand and Lori will

L.A. REPORTING (312) 419-9292

1 swear you in, please.

2 THE COURT REPORTER: Would you raise

3 your right hand, please?

4 Do you swear the testimony you

5 are about to give is the truth, the whole truth

6 and nothing but the truth, so help you God?

7 MR. GARCIA: Yes.

8 (Witness sworn.)

9 WHEREUPON:

10 O R H E L I O G A R C I A

11 called as a witness herein, having been first duly

12 sworn, deposeth and saith as follows:

13 D I R E C T E X A M I N A T I O N

14 by Mr. Pirok

15 Q. Would you state your name, sir?

16 A. Orhelio Garcia.

17 Q. What is your address?

18 A. 4925 Somolda.

19 Q. What was your employer on August 28,

20 2002?

21 A. City Wide Disposal.

22 Q. Did you place anything on the ground

23 at 3910 South Loomis in Chicago on that day?

24 A. Pardon?

L.A. REPORTING (312) 419-9292

1 Q. Did you place anything on the ground

2 from your truck at the City Wide facility in Chicago

3 on August 28, 2002?

4 A. I don't understand.

5 Q. Did you unload a truck on May 28,

6 2002?

7 A. Yes, yes.

8 Q. Where?

9 A. They say dump in the back.

10 Q. That is the back of the property of

11 City Wide?

12 A. I don't -- no communication. When you

13 say dump in the back, me no understand. We go in

14 the back and dump it.

15 Q. Okay. When you dumped it, was it on

16 the site at City Wide?

17 A. Yes.

18 Q. Okay. Are you a part-time or

19 full-time driver?

20 A. Part-time.

21 Q. How many times do you work per month

22 for City Wide?

23 A. Maybe five days.

24 Q. Did you talk to the dispatcher about

L.A. REPORTING (312) 419-9292

1 where to put -- where to dump the material?

2 A. I don't understand.

3 Q. Did you talk to the dispatcher to find

4 out where to dump the material?

5 A. Yes.

6 Q. And what did he tell you, if anything?

7 A. He say dump it in back.

8 Q. And then you took it to the back at

9 39th Street at City Wide?

10 A. Yes.

11 Q. Did you at any time find out you had

12 made a mistake?

13 A. Yes.

14 Q. When?

15 A. (No response.)

16 Q. Do you know when, sir, you found out

17 you made a mistake or how you found out you made a

18 mistake?

19 A. I don't understand.

20 Q. After you dumped the material at City

21 Wide --

22 A. Yes.

23 Q. -- did you find out you were supposed

24 to dump it at Shred-All at 43rd street at the back?

L.A. REPORTING (312) 419-9292

1 A. Yes, yes.

2 MR. KING: I'm going to object

3 to the leading nature of these questions.

4 I'm not sure with the -- with all respect

5 to Mr. Garcia, I don't know that he understands

6 what's being asked.

7 HEARING OFFICER HALLORAN: We could

8 continue this, but -- I'm going to close the

9 door, but I agree, Mr. Pirok. I know there is

10 a communication problem, but half the questions

11 you have been asking have been leading and I

12 understand what's going on. So we're going

13 to have to -- I sustain Mr. King's objection.

14 If you could, ask questions that are -- have a

15 little more open endedness, please.

16 MR. PIROK: I have no further

17 questions.

18 HEARING OFFICER HALLORAN: Thank

19 you. Mr. King?

20 MR. KING: I would like to re-call

21 Mr. Robertson to offer some rebuttal testimony.

22 HEARING OFFICER HALLORAN: Okay.

23 Well, let's finish with Mr. Garcia.

24 MR. KING: Okay. No, I have no

L.A. REPORTING (312) 419-9292

1 further questions of Mr. Garcia.

2 HEARING OFFICER HALLORAN: Okay.

3 You may step down. Thank you.

4 (Witness excused.)

5 HEARING OFFICER HALLORAN: Mr. Pirok,

6 do you rest?

7 MR. PIROK: Yes.

8 (Respondent rests.)

9 HEARING OFFICER HALLORAN: Okay.

10 Mr. King, do you want to re-call your rebuttal?

11 MR. KING: Yes, Mr. Robertson.

12 HEARING OFFICER HALLORAN: I will

13 remind you that you are still under oath.

14 THE WITNESS: Yes, sir.

15 HEARING OFFICER HALLORAN: Thank you.

16 R E B U T T A L E X A M I N A T I O N

17 by Mr. King

18 Q. Mr. Robertson, I refer you to

19 Exhibit A?

20 (Document tendered

21 to the witness.)

22 BY THE WITNESS:

23 A. Okay.

L.A. REPORTING (312) 419-9292

1 BY MR. KING:

2 Q. Do you have a copy of that?

3 A. I gave it to the hearing officer.

4 Q. There should be enough copies for

5 everybody. This is City Exhibit A, photo number

6 two.

7 (Document tendered

8 to the witness.)

9 BY THE WITNESS:

10 A. Okay.

11 BY MR. KING:

12 Q. We discussed this photo earlier.

13 That's a photo of a pile of debris that you observed

14 on the 28th, correct?

15 A. Correct.

16 Q. What is that in the photo behind to

17 the left of the pile in the photograph?

18 A. It's the same type of material across

19 from the pit area that I spoke of earlier. This is

20 an elongated shot looking to the west of this

21 northwest -- that's what I have as northwest here.

22 It's showing the first pile and the back piles

23 there. In between, there's a little pit area that's

24 below grade here. That's why I took that shot.

L.A. REPORTING (312) 419-9292

1 Q. How many piles of debris were on the

2 site when you were out there?

3 A. Three, approximately three piles were

4 there.

5 Q. Do you know about how far the piles

6 in the background are from the pile in the

7 foreground?

8 A. Well, they're just across the pit

9 area. I would say maybe five to ten feet.

10 Q. Would one truck have dumped all of

11 those piles of debris?

12 A. One truck making numerous trips,

13 correct.

14 Q. But at one time?

15 A. Not at one time. No, there would have

16 to be other trucks.

17 Q. All right. Mr. Barbara, when he

18 was on the stand, testified that subsequent to

19 August 28th, City Wide sent all of their trucks

20 to Shred-All.

21 Do you know whether that is

22 accurate or not?

23 A. I do not know.

24 Q. Have you on any subsequent occasion

L.A. REPORTING (312) 419-9292

1 caused -- have you found on any subsequent occasion

2 dumping at the site at 3119 South Loomis?

3 A. Say that again, counsel.

4 Q. On an occasion subsequent to the

5 August 28th incident, have you observed dumping at

6 3910 South Loomis?

7 A. Do you mean prior?

8 Q. Since?

9 A. Since, yes, sir.

10 Q. On how many occasions?

11 A. I think two later occasions.

12 Q. What types of materials did you

13 observe?

14 A. The same material, construction

15 debris, C and D waste, approximately two weeks

16 ago, I was at the site and the same thing had

17 occurred.

18 Q. In the same approximate occasion?

19 A. Same, yes.

20 Q. With the same types of material?

21 A. Yes.

22 MR. KING: All right. Thank you.

23 I have no further questions.

24 HEARING OFFICER HALLORAN: Mr. Pirok?

L.A. REPORTING (312) 419-9292

1 MR. PIROK: Yes.

2 R E C R O S S - R E B U T T A L

3 by Mr. Pirok

4 Q. Subsequent times after August 28,

5 2002, did you issue a citation?

6 A. Yes.

7 Q. And when did you issue a citation, if

8 you recall?

9 A. The last citation was issued

10 approximately two weeks ago.

11 Q. Was this for C and D?

12 A. Correct.

13 Q. Okay. And the other times?

14 A. Mostly C and D waste again, same

15 thing.

16 Q. Okay. Did you issue any other

17 citations?

18 A. Yes.

19 Q. Okay. How many if you know?

20 A. I believe two. It was two weeks prior

21 and then I think sometime back in a couple months,

22 maybe October or November. I'm not sure. I would

23 have to go back to the records. I know two weeks

24 ago, Mr. Barbara and I talked about the same

L.A. REPORTING (312) 419-9292

1 incident as we are here about today. Prior to other

2 occasions, the same stuff.

3 Q. The load of August 28, 2002, that you

4 saw would that be a continuing violation if kept

5 there after the citation was issued?

6 A. Yes. The department has a right to

7 issue citations every day.

8 Q. In the normal operations of the

9 department, how often would you follow-up after a

10 particular incident?

11 A. We have to take into account -- excuse

12 me. The waste on-site, the time that you give the

13 companies or the individuals to clean up may be 30

14 days, 35 to 45 days.

15 Q. Okay. Did you then conduct another

16 inspection 30 or 45 days after August 28, 2002?

17 A. I believe I did.

18 Q. Okay. Had the construction debris and

19 material pictured in the photographs on Exhibit A

20 been removed?

21 A. Yes.

22 Q. Was there any other at that time?

23 A. Any other incidents at that time?

24 Q. At that time, at the inspection 30 to

L.A. REPORTING (312) 419-9292

1 45 days later.

2 A. None that occasion.

3 MR. PIROK: I have nothing further.

4 Thank you.

5 HEARING OFFICER HALLORAN: Mr. King?

6 MR. KING: Just very briefly, I would

7 like to clarify something.

8 HEARING OFFICER HALLORAN: Okay. Go

9 ahead.

10 R E D I R E C T R E B U T T A L

11 by Mr. King

12 Q. You spoke about citations that you

13 issued. Those were citations were under the city's

14 ordinances and not administrative citations?

15 A. That's correct.

16 MR. KING: That's all.

17 HEARING OFFICER HALLORAN: Mr. Pirok?

18 MR. PIROK: Nothing.

19 HEARING OFFICER HALLORAN: All right.

20 You may step down.

21 (Witness excused.)

22 HEARING OFFICER HALLORAN: We're going

23 to go off the record for a second.

24 (Whereupon, a discussion

L.A. REPORTING (312) 419-9292

1 was had off the record.)

2 HEARING OFFICER HALLORAN: We're

3 back on the record.

4 Mr. King has decided to waive

5 his closing and address that in his post

6 hearing brief.

7 Mr. Pirok is going to do a

8 closing.

9 However, when we were off the

10 record, we discussed a post hearing briefing

11 schedule. The transcript will be ready by

12 June 13th. It won't be on our web site until

13 June 16th. Based on that, the city's opening

14 brief is due July 7th. The respondent's

15 response is due July 28. I'm setting June

16 27th as the cutoff date for public comment.

17 With that said, Mr. Pirok, you

18 may begin your closing.

19 MR. PIROK: Thank you very much.

20 HEARING OFFICER HALLORAN: Thank you,

21 sir.

L.A. REPORTING (312) 419-9292

1 C L O S I N G A R G U M E N T

2 by Mr. Pirok

3 Very, very briefly, it's the position

4 of the respondent that any alleged violation

5 was the result of uncontrollable circumstances.

6 At the time of the incident, the procedure in

7 place was that the dispatcher would send any

8 load of C and D out to 43rd Street where they

9 had a contract with Shred-All to take it to

10 the back transfer station at Shred-All over

11 at 43rd Street. The dispatcher would instruct

12 anybody that came in with C and D to the

13 facility on Loomis Street to do so and they

14 would do so.

15 On this particular instance,

16 one individual who was a part-time driver,

17 Orhelio Garcia, admittedly did not understand

18 or speak English too fluently, apparently

19 misunderstood that instruction and he dumped

20 in the back of the facility of City Wide at

21 39th Street.

22 When the owner was advised

23 by Investigator Robertson on that day, the

24 same day it had been dumped, he caused it

L.A. REPORTING (312) 419-9292

1 to be cleaned up and sent it over to

2 Shred-All. It was put in one truck and

3 taken to the back.

4 From his investigation, he

5 found out what happened and he took steps

6 to see that it wouldn't happen again. I

7 suggest -- I submit that if they come in

8 and they use the facility as a transfer

9 station and put it on the ground, that's

10 one thing. If it's on the ground for ten

11 seconds, too bad.

12 On the other hand, if the

13 policy is if you take it out there and

14 by mistake a driver puts it on the ground

15 and then as soon as it's discovered, it's

16 taken and put up, that that is not a

17 violation in the way the statutes and

18 the regulations have been promulgated.

19 I would simply refer to

20 one case, which is Rochelle Disposal Service,

21 Inc. against Illinois Pollution Control Board.

22 It's a district case from 1994. The citation

23 is 266 Il App 3d 192 and that's 639 Northeastern

24 2nd 988 and 203 Illinois Decision 429. There,

L.A. REPORTING (312) 419-9292

1 the court, with respect to uncovered refuge in

2 sanitary landfills, found that there was

3 evidence sufficient to support a finding

4 that the landfill operator violated the

5 Environmental Protection Act by putting

6 refuge to remain uncovered overnight.

7 I would submit that when you

8 have a decision saying that it had to be there

9 overnight it, in essence, shows the spirit of

10 the statute and the regulations that it has

11 to be, in fact, an act, not an inadvertent

12 act, and the fact that it's down there for

13 an hour or two hours or something until it's

14 discovered and immediately taken to the

15 standard Shred-All facility, which is

16 the transferred station, which had been

17 the transferred station four months prior

18 and was subsequent, that that is not something

19 that is covered or, in fact, a violation and

20 I would cite to the reasoning in that case

21 as a basis for the similar finding in this

22 for a similar finding due to the circumstances.

23 That essentially is our case.

24 HEARING OFFICER HALLORAN: Thank you,

L.A. REPORTING (312) 419-9292

1 Mr. Pirok.

2 Before I -- Mr. Robertson, did

3 you take off with my exhibit?

4 MR. ROBERTSON: No. I left it there

5 with you.

6 HEARING OFFICER HALLORAN: Oh, yes,

7 you did.

8 Before I forget, I was supposed

9 to make a credibility determination and based

10 on my legal observations, judgment, et cetera,

11 experience, I find that there are no credibility

12 issues with the three witnesses that testified

13 here today.

14 I also want to thank both

15 counsel for their utmost professionalism

16 throughout this proceeding, including the

17 telephone conversations.

18 I thank you very much. Have

19 a safe trip home. Thanks.

20 MR. PIROK: Thank you.

21 MR. KING: Thank you very much.

L.A. REPORTING (312) 419-9292

1 (Whereupon, no further

2 proceedings were had

3 in the above-entitled

4 cause.)

L.A. REPORTING (312) 419-9292

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF C O O K )

4 I, LORI ANN ASAUSKAS, a notary public

5 within and for the County of Cook and State of

6 Illinois, do hereby certify that heretofore,

7 to-wit, on the 3rd day of June, A.D., 2003,

8 personally appeared before me at Room 2-025 of

9 the James R. Thompson Center, in the City of

10 Chicago, County of Cook and State of Illinois,

11 a certain cause now pending and undetermined

12 before the Illinois Pollution Control Board in

13 the above-entitled cause.

14 I further certify that any said

15 witnesses were by me first duly sworn to testify

16 the truth, the whole truth and nothing but the truth

17 in the cause aforesaid; that the testimony then

18 given by them were by me reduced to writing by means

19 of shorthand in the presence of said witness and

20 afterwards transcribed upon a computer, and the

21 foregoing is a true and correct transcript of the

22 testimony so given by them as aforesaid.

23 I further certify that the taking of

24 this hearing was pursuant to notice, and that there

L.A. REPORTING (312) 419-9292

1 were present at the taking of the hearing of the

2 aforementioned parties.

3 I further certify that I am not

4 counsel for nor in any way related to any of the

5 parties to this hearing, nor am I in any way

6 interested in the outcome thereof.

7 In testimony whereof I have hereunto

8 set my hand and affixed my notarial seal this

9 13th day of June, A.D., 2003.

11 _____________________________

LORI ANN ASAUSKAS, CSR, RPR.

12 Notary Public, Cook County, IL

Illinois License No. 084-002890

L.A. REPORTING (312) 419-9292