BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

CITY OF CHICAGO

)

DEPARTMENT OF ENVIRONMENT,

)

Petitioner,

)

ACO3-11

)

RECEIVED

CLERK’S

OFF~CF

JUL

2003

STATE OF ILLINOIS

Pollution

Control Bocird

CITY WIDE DISPOSAL, INC.,

)

Respondent.

)

NOTICE OF FILING

To:

Edward W. Pirok

Frank &

Associates, Ltd.

734 N. Wells St.

Chicago, IL 60610

(viafirst class

US.

Mail)

Bradley P. Halloran

Illinois Pollution Control Board

100 W. Randolph St., Suite 11-500

Chicago, IL 60601

(via hand delivery)

Please take notice that on July 7,

2003, I filed the attached

Petitioner’s Post-Hearing

Brief with the Clerk ofthe Illinois Pollution Control Board.

Mara S. Georges

Corporation Counsel

Charles A. King

Assistant

Corporation Counsel

Chicago Department ofLaw

30 N. LaSalle St., Suite 900

Chicago, IL

60602

(312) 742-0330

Fax:

(312) 744-6798

CERTIFICATE OF SERVICE

I, Charles A. King,

an attorney, certify that I caused copies ofthis notice and the

document referenced herein to be

served on the parties to

whom the notice is directed by in the

manner indicated above on July 7, 2003

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CITY OF CHICAGO

)

JUL

DEPARTMENT OF ENVIRONMENT,

)

OF lLLlrv~

Petitioner,

)

flControj Board

)

ACO3-11

)

CITY WIDE DISPOSAL, INC.,

)

Respondent.

)

PETITIONER’S POST-HEARING BRIEF

The City ofChicago Department ofEnvironment

(“CDOE”), by and through its

attorney,

Mara S. Georges, Corporation Counsel for the City ofChicago, submits this brief in support ofa

finding of liability on both charged violations in the above-captioned administrative citation.

is discussed below, the evidence presented at the hearing establishes that the respondent, City

Wide Disposal, Inc.

(“City Wide”), is

liable for violations ofboth sections 2l(p)(l) and 2l(p)(7)

ofthe Environmental Protection Act, 415

ILCS

(“Act”).

Background and Chronology

This is the second administrative citation issued to

City Wide for violations of sections

2l(p)(l) and 21@)(7) of the Act.

On May 23, 2002, CDOE issued an

administrative citation to

City Wide for violations ofthose sections, based on an

inspection ofCity Wide’s

facility at 3910

South Loomis Street in Chicago, Illinois, on April

16, 2002.

See

City of Chicago Department of

Environment v. City Wide Disposal,

Inc., AC 02-57 (citation filedwith the Board on May 29,

2002).

City Wide did not request a hearing to protest that citation, and

on August

8, 2002, the

Board adopted an order finding that City Wide committed

the charged violations

and imposing

the statutory penalty of$1,500.00 per violation, in accordance with Section

42(b)(4-5)

ofthe Act

(415 ILCS

5142(b)(4-5)).

See City ofChicago Department ofEnvironment v. City Wide

Disposal, Inc., AC 02-57 (August 8, 2002).

On August 28, 2002, CDOE again inspected City Wide’s South

Loomis Street facility.

Based on conditions observed on that date by CDOE’s inspector, on October 25, 2002, CDOE

issued this administrative citation to

City Wide.

On November 27, 2002 City Wide filed its

request for a hearing.

The hearing was held on June 3, 2003.

Relevant Law

The administrative citation charges City Wide with violations of sections 21(p)(1) and

2l(p)(7) ofthe Act (415 ILCS

5/21(p)(l),

(7)).

The relevant parts ofsection 21

provide:

No person shall:

(a)

Cause or allow the open dumping of any waste.

***

(p)

In violation ofsubdivision (a) of this Section, cause or

allow the open dumping ofany waste in a maimer which

results in any ofthe following occurrences at the dump site:

(1)

litter;

(7)

deposition of:

(i)

general construction or demolition debris as

defined in Section 3.160(a) of this Act.J

Several important terms in section 21

are defined elsewhere in the Act.

“Open dumping”

defined in section 3.305 ofthe Act (415 ILCS 5/303.5), which provides:

“Open dumping” means the consolidation ofrefuse

from one or

more sources at a disposal

site that does not fulfill

the requirements

ofa sanitary landfill.

“Refuse is defined in section 3.385 of the Act (415 ILCS

5/3.385),

which provides:

“Refuse” means waste.

“Waste” is defined in section 3.535 ofthe Act (415 ILCS

5/3.535),

which provides:

“Waste” means

any garbage, sludge from a waste treatment plant,

water supply treatment plant, or air pollution control facility or

other discarded material, including solid,

liquid, semi-solid,

contained gaseous material resulting from industrial, commercial,

mining and agricultural operations, and

from community activities,

but does not include solid or dissolved material in domestic

sewage, or solid or dissolved materials

in irrigation return flows, or

coal combustion by-products as defined in Section 3.135, or

industrial discharges which are point sources subject to permits

under Section

402 ofthe Federal Water Pollution Control Act, as

now or hereafter amended, or source,

special nuclear, or by-product

materials as defined by the Atomic Energy Act of 1954, as

amended (68 Stat. 921) or any solid or dissolved material from any

facility subject to the Federal Surface Mining Control and

Reclamation Act of 1977

(P.L. 95-87) orthe rules and regulations

thereunder or any law or rule or regulation adoptedby the State of

Illinois pursuant thereto.

“Disposal”

is defined in section 3.185 of the Act (415 ILCS

5/3.185),

which provides:

“Disposal” means the discharge, deposit, injection,

dumping,

spilling, leaking orplacing ofany waste or hazardous waste into or

on any land or water or into any well so that such waste or

hazardous waste or any constituent thereofmay enterthe

environment or be emitted into the air or discharged into any

waters, including ground waters.

“General construction or demolition debris”

is defined in section 3.160(a) ofthe Act (415 ILCS

5/3.160(a)),

which

provides:

(a)

“General construction or demolition debris” means non-

hazardous, uncontaminated materials resulting from the

construction, remodeling, repair, and demolition of utilities,

structures, and roads, limited to the following: bricks,

concrete, and other masonry materials;

soil; rock; wood,

including non-hazardous painted, treated, and coated wood

and wood products; wall coverings; plaster; drywall;

plumbing fixtures; non-asbestos insulation; roofing

shingles and other roofcoverings; reclaimed asphalt

pavement; glass; plastics that are not sealed in

a manner

that conceals waste; electrical wiring and components

containing no hazardous substances; and piping ormetals

incidental to any ofthose materials. General construction or

demolition debris does not include uncontaminated soil

generated during construction, remodeling, repair, and

demolition of utilities, structures, and roads provided the

uncontaminated soil is not commingled with

any general

construction or demolition debris or other waste.

“Litter” is not defined in the Act, but the appellate

court has noted:

A person ofcommon intelligence can understand the term “litter.”

* *

Given its

ordinary meaning,

“litter” refers

to material oflittle

orno value which has not been properly disposed of

The

examples oflitter set forth in the Litter Control Act 415

ILCS

105

provide additional guidance.

Miller v.

Pollution Control

Board, 642 N.E.2d 475,

483

(Ill. App. Ct. 4th Dist.

1994).

Section 3(a) ofthe Litter Control Act, 415 ILCS

105/3(a) (2000), provides:

As used in this Act, unless the context otherwise requires:

(a)

“Litter” means

any discarded, used or unconsumed

substance or waste.

“Litter” may include, but is not limited

to, any garbage, trash, refuse, debris, rubbish, grass

clippings or other lawn or garden waste, newspaper,

magazines, glass, metal, plastic or paper containers or other

packaging

construction material, abandoned vehicle (as

defined

in the Illinois Vehicle Code),

motor vehicle parts,

furniture, oil,

carcass ofa dead animal, any nauseous or

offensive matter ofany kind, any object likely to injure any

person or create a traffic hazard, potentially infectious

medical waste

as defined in Section 3.360 of the

Environmental Protection Act, or anything else of an

unsightly or unsanitary nature, which has been discarded,

abandoned or otherwise disposed ofimproperly.

Thus,

litter, for the purposes ofthe Act, “may include,

but is not limited to, any.

refuse, debris

or any thing else ofan unsightly.

nature.J”

Facts

The facts regarding the events underlying this administrative citation are, for the most

part, not

in dispute.

The

South Loomis Street site is leased by City Wide.

Hearing Transcript

(hereinafter “Tr.”) at

14,

38.

On the afternoon ofAugust 28, 2002,

CDOE inspector Lafayette

Robertson visited the

site, where he observed piles ofconstruction debris, concrete blocks, dirt,

wooden pallets, brick, and scrap

metal.

Tr.

at 8-9,

18-19;

Complainant’s Exhibit A

(photographs)’.

The material was dumped by a truck driver working for City Wide.

Tr. at 41,

50.

City Wide did not have a permit to operate

a waste disposal facility at the South Loomis

Street site.

Tr. at 13-14.

CDOE’s and

City Wide’s witnesses disagreed regarding the volume of

material dumped at the site (see Tr.

at 19, 40-41,

55),

but a minimum volume ofmaterial is not

element of either ofthe charged violations.

In any event, even according to

City Wide’s

witness, Mr. Barbara, approximately twenty cubic yards ofmaterial was dumped at the site.

Tr.

at 40-41.

Complainant’s Exhibit A, admitted into evidence (Tr. at 36), is the inspection report

prepared by Mr. Robertson after his visit to

City Wide’s site.

It includes copies ofphotographs

taken by Mr. Robertson.

The original color photographs taken by Mr. Robertson were attached

the original administrative citation filed by the City, and

are in the Board’s files.

Analysis

Dumping ofthe material at the

South Loomis Street site constituted “open dumping”.

As the photographs included in Complainant’s Exhibit A make clear, the dumping of

material at the South Loomis Street site was consolidation ofwaste

from one or more sources:

the piles ofwaste photographed by Mr. Robertson include a variety oftypes of construction and

demolition debris (bricks, scrap metal, wood, concrete) combined into a series ofpiles.

The

dumping furthermore clearly constitutes “disposal” inasmuch as the waste was placed out in the

open where it could enter the environment.

Under Section 3.185

(quoted above)

this is

sufficient; there is no requirement that the material be left permanently where dumped.

Thus,

City Wide’s subsequent removal ofthe material does not obviate the violation.

Finally, as noted

above, City Wide did not have a permit to operate a waste disposal facility at South Loomis

Street.

Thus,

all elements of“open dumping,” as defined in Section 3.305 ofthe Act

(quoted

above), are met: consolidation ofrefuse (waste) from one or more sources at a disposal site that

does not meet the requirements (including having a permit) for a sanitary landfill.

Open Dumping at the Site Resulted in Litter.

“Litter,” as defined in the Litter control

Act, includes “any.

debris..

or anything else of an unsightly.

nature.

disposed of

improperly.”

415 ILCS

105/3(a).

The material pictured in the photographs

included in

Complainant’s Exhibit A obviously falls into one, if not both, ofthese categories.

Put another

way, the pictured material constitutes material of little or no value (City Wide pays to

get rid of

such material;

see Tr. at 47-48) disposed ofimproperly, meeting the definition in Miller v.

Pollution Control Board,

supra,

642 N.E.2d at 483.

Because the open dumping at the site

resulted in litter, City Wide violated Section 2l(p)(l) of the Act.

Open Dumping Resulted in Deposition of General Construction or Demolition Debris.

The material dumped at the South Loomis Street site included “bricks, concrete, and other

masonry materials;

soil; rock; wood,.

;

and.

metals incidental to any ofthose materials.”

All these constituents of the waste dumped at South Loomis

Street are listed

in the illustrative list

ofmaterials constituting “general construction or demolition debris” in

Section 3.160(a) ofthe

Act (quoted

above).

As the photos in Complainant’s Exhibit A indicate, the material was

deposited on the ground.

Because the open dumping at the South Loomis Street site resulted in

deposition of general construction or demolition debris,

City Wide has violated Section 21(p)(7)

of the Act.

City Wide’s Asserted Defenses are Insufficient

City Wide claims that the open dumping at the South Loomis Street site occurred as the

result ofan “uncontrollable circumstance”.

The alleged uncontrollable circumstance was that a

language barrier resulted in City Wide’s driver failing to understand what he was told by City

Wide’s dispatcher.

Tr.

at 61.

This circumstance

is far from unavoidable; it could have been

avoided ifCity Wide had made even the most rudimentary efforts

to ensure that drivers and the

dispatcher could communicate.

Contrary to City Wide’s argument, the length oftime the debris remained on the ground

not an element ofthe violation.

In his closing argument

CityWide’s attorney cited to Rochelle

Disposal Service, Inc. v. Illinois Pollution Control Board,

639 N.E.2d 988

(Ill. Ct. App. 2d Dist.

1994), for the proposition that refuse must remain overnight to constitute a violation.

Tr.

at 62-

63.

This argument misapplies Rochelle Disposal.

In that case, a landfill operator received

administrative citations for failing to apply daily cover to the landfill, in violation of Section