1. CERTIFICATE OF SERVICE
      2. PROTECTION ACT.
      3. CONCLUSION
      4. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      5. • NOTICE OF FILING
      6. CERTIFICATE OF SERVICE
BEFORE
TILE
ILLINOIS POLLUTION CONTROL BOAR)
CITY OF CHICAGO DEPARTMENT
)
OF ENVIRONMENT,
)
)
CL~R~
~
Complamant,
)
AC 03-11
)
(CDOE No.
02-05-AC)
L
~
2003
v.
)
PO//U~gFILLINOIS
CITY WIDE DISPOSAL,
INC.,
Boarcf
)
Respondent.
)
NOTICE OF
FILING
TO:
City ofChicago Department ofEnvironment
Field Operations Division
30 North LaSalle Street, Suite 2500
Chicago, Illinois 60602
Charles A.
King, Esq.
Assistant Corporation Counsel
Chicago Department ofLaw
30 North LaSalle
Street.#900
Chicago, Illinois 60602
Mr. Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center #11500
100 West Randolph Street
Chicago, Illinois 60601
PLEASE
TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the RESPONDENT CITY WIDE DISPOSAL,
INC.’S POST-
HEARING BRIEF of the Respondent’s attorneys, FRANK &
ASSOCIATES, INC., a copy of
~
upo
you~~
~
~
Name ofAttorney or Other Representative
Edward W.
Pirok
Date: July28, 2003
Name:
EDWARD W. PIROK, FRANK &
ASSOCIATES, LTD.
Address:
734 North Wells Street, Chicago, IL 60610
Telephone Number:
312.654.9020
CERTIFICATE OF SERVICE
I, the undersigned attorney, certiI~,’
that I have served the attached RESPONDENT CITY WIDE
DISPOSAL, INC.’S POST-HEARING BRIEF and NOTICE OF FILING by mail, upon the
following persons:
City ofChicago Department ofEnvironment
Field Operations Division
30 North LaSalle Street, Suite 2500
Chicago, Illinois 60602
Charles A. King, Esq.
Assistant
Corporation Counsel
Chicago Department ofLaw
30 North LaSalle Street #900
Chicago, Illinois 60602
Mr. Bradley P. Halloran
Hearing Officer
Illi~ioisPollution Control Board
James R. Thompson Center #11500
100 West Randolph Street
Chicago, Illinois 60601
by depositing the aforementioned documents in the United States Post Office Box at Franklin
Street and
Superior Street in Chicago, Iffinois,
in a sealed envelope, with postage filly pre-paid,
addressed as shown above on July 28, 2003.
Edward W.
Pirok
Attorney at Law
EDWARD W. PIROK, ESQ.
FRANK & ASSOCIATES,
LTD.
734 North Wells Street
Chicago, IL 60610
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARJP-~
~‘
JUL
Z003
CITY OF
CHICAGO DEPARTMENT
)
s
OF ENVIRONMENT,
)
sTP~°~
Id
)
pollution
Con
Complainant,
)
AC
03-11
)
(CDOE No. 02-05-AC)
v.
)
)
CITY WIDE DISPOSAL, INC.,
)
)
•
Respondent.
)
RESPONDENT
CITY WIDE DISPOSAL. INC.’S
POST-HEARING BRIEF
The Respondent, CITY WIDE DISPOSAL, INC., by and through its attorneys, CARL
J.
FRANK and EDWARD W. PIROK,
submits this Brief in opposition to any finding ofliability on
the two charged violations in the above-entitled administrative citation.
FACTS
Mr. Anthony Barbara, the Owner ofthe Respondent, CITY WIDE DISPOSAL, INC.,
met with Mr. Lafayette Robertson, Supervisor with the Department ofEnvironment ofthe City of
Chicago, on August 28, 2002,
the date ofthe alleged violation.
Hearing Transcript (hereinafter
“Tr.”) at
38.
At that time, Mr. Barbara advised Mr. Robertson that he did not know that a driver
had
dumped construction debris as shown in Exhibit A and then went to the back ofthe property
to observe what Mr. Robertson had advised him of.
Tr. at 38, 39.
He then had a laborer load up
the construction debris and had
it taken to the Shred-All Recycling transfer station with which the
Respondent had a contract.
Tr.
at 39.
The Shred-All transfer station
is located at
43rd
Street and
Racine and has two separate areas or transfer stations which are referred to as the front and the
back; when a party enters, the personnel at Shred-All advise what direction to go, whether to the
1
front or to the back.
Tr. at 40.
All ofthe construction debris shown in the photograph was
loaded onto
one vehicle which was a 20-yard dumpster.
Tr. at 40,41.
Mr. Barbara thentalked to
the Respondent’s dispatcher and two drivers and was advised
by them that a fill-in driver that works for the Respondent part-time had been instructed by the
dispatcher to take his load and dump it in the back ofthe Shred-All Recycling transfer station on
43rd
and Racine.
Tr.
at 41.
However, the driver misunderstood and dumped it in the back ofthe
property leased by the Respondent at
39th
Street.
Tr. at 41.
The dispatcher, Dominic Falano,
did
not see the part-time driver because ofthe heavy traffic in the leased premises which is shared
with four additional companies which had trucks blocking the dispatcher’s window.
Tr. at 41, 42.
For the four months prior to August 28, 2002, the dispatcher had directed people bringing
truckloads ofconstruction debris to the Shred-All transfer station, and Mr. Falano would
specifically direct driver’s to briiig the construction debris to the back transfer station ofShred-All
becausethe Respondent had contracted with Shred-All for the use ofthe back transfer station to
dump at and was not able to dump
in the
front transfer station ofShred-All.
Tr.
at 42, 43.
Mr.
Barbara also spoke with the part-time driver, Orhelio Garcia; Mr. Garcia, when asked why he
dumped it in the back ofthe Respondent’s property, said that the dispatcher had told himto dump
it in the back; when the dispatcher was asked
if he told Mr. Garcia to take the truck to the back at
the 43~’
Street transfer station orjust told him “in the back,” the dispatcher admitted that he had
merely told him “inthe back” and did not specifically tell him in the back at
43r~j
Street. Tr. at 43,
44.
The Respondent on August 28,
2002, did not cause or allow the dumping ofconstruction
debris to occur on its property, and any construction debris that came
on the property would be
sent to the transfer station that the Respondent had contracted with, namely the Shred-All
2
Recycling back transfer station at
43rd
Street.
Tr. at 44.
Other trucks that came in with
construction debris on August 28 and the fourmonths before were sent to the
Shred-All back
transfer station.
Tr. at
44.
Although the Respondent uses some other transfer stations that are in
Meirose Park, Illinois, everything in the City ofChicago goes to the Shred-All Recycling back
transfer station in Chicago.
Tr.
at
45.
The miscommunication betweenthe dispatcher and Mr. Garcia was an uncontrollable
circumstance, and Mr. Barbara immediately took measures to stop any future miscommunications
or occurrences ofa similar nature by explaining to all the part-time drivers what was meant by
“back” and
by explaining to the dispatcher that “when you say ‘the back,’ say
~43rd
Street;” this
same information was posted on a sheet ofpaper in the dispatch room.
Tr. at
45.
When Mr.
Barbara explained the circumstances to Mr. Robertson when Mr. Robertson returned to issue the
citation, Mr. Robertson advised ihat he had to do his job and write the
citation.
Tr. at 46, 47.
The very briefand simple testimony ofthe part-time driver, Mr. Orheio
Garcia, reveals
the accuracy ofthe statement that there was a clear misunderstanding and miscommunication
between the dispatcher and Mr. Garcia;
indeed, even counsel for the Complainant questioned
whether Mr.
Garcia understood the very simple questions he
was being asked at the Hearing
itself.
Tr. at
49,
50, 51,
and
52.
Mr. Garcia testified as follows:
Q.
Would you state your name, sir?
A.
Orhelio Garcia.
Q.
What is your address?
A.
4925
Somolda.
Q.
What was your employer on August 28, 2002?
A.
City Wide Disposal.
Q.
Did you place anything on the ground at 3910 South Loomis in Chicago on that day?
A.
Pardon?
Q.
Did you place anything on the ground from your truck at the City Wide facility in
3
Chicago on August 28, 2002?
A.
I don’t understand.
Q.
Did you unload a truck on May 28, 2002?
A.
Yes, yes.
Q.
Where?
A.
They say dump in the back.
Q.
That is the back ofthe property
pf
City Wide?
A.
I don’t
—
no communication.
When you say dump
in the back, me no understand.
We
go
in the back and dump it.
Q.
Okay.
When you dumped it, was it on the site at City Wide?
A.
Yes.
Q.
Okay.
Are you a part-time or full-time driver?
A.
Part-time.
Q.
How many times do you work per month for City Wide?
A.
Maybe five days.
Q.
Did you talk to the dispatcher about where to put
—
where to dump the material?
A.
I don’t understand.
Q.
Did you talk to the dispatcher to find out where to dump the material?
A.
Yes.
Q.
And what did
he tell you, if anything?
A.
He say dump it in back.
Q.
And then you took it to the back at
39th
Street at City Wide?
A.
Yes.
Q.
Did you at any time find out you had made a mistake?
A.
Yes.
Q.
When?
A.
(No response.)
Q.
Do you know when, sir, you found out you made a mistake or how you found out you
made a mistake?
A.
I don’t understand.
Q.
After you dumped the material at City Wide
—
A.
Yes.
Q.
—
did
you find out you were supposed to dump it at Shred-All at 43~’
Street at the
back?
A.
Yes, yes.
MR.
KING:
I’m going to object to the leading nature ofthese questions.
I’m not
sure with the
—
with all respect to Mr. Garcia, I don’t know that he
understands what’s being asked.
HEARING OFFICER HALLORAN: We could continue this,
but
—
I’m
going to close the door, but I agree, Mr. Pirok.
I know there is a
communication problem, but halfthe questions
you have been asking have
4
been leading and I understand what’s going on.
So we’re going to have to
—
I
sustain Mr. King’s objection.
Ifyou could, ask questions that are
—
have a little more open endedness, please.
MR. PIROK: I have no further questions.
Tr.
49, 50, 51,
and 52.
THE
EVIDENCE IN
THE
PRESENT CASE
IS INSUFFICIENT
TO SUPPORT A
FINDING THAT
THE
RESPONDENT VIOLATED
THE
ENVIRONMENTAL
PROTECTION ACT.
•
In Rochelle Disposal Service, Inc. v.
Illinois Pollution Control Board, 266 Ill. App. 3d
192, 639 N.E. 2d 988, 203
III. Dec. 429 (2nd Dist.
1994), the court heldthat the evidence was
sufficient to support a finding that a landfill operator had violated the Environmental Protection
Act by permitting refuse to remain uncovered overnight, as the investigator testified that he saw
no pile ofcover soil and no soil mixed in with refuse that would indicate that refuse had been
covered the previous night and thenuncovered.
The court found that the evidence was sufficient
to support
a finding that the landfill operator violated the Environmental Protection Act by failing
to contain and collect litter at the site by the end ofthe operating day, since no uncontrollable
circumstances existed on the day in question.
The court also noted that the operator’s president
had testified that not all loose litter was frozen to the ground and that the operator failed to
indicate why it did not hire temporary help when litter pickers were out sick.
This opinion, in essence, goes to the spirit ofthe statue and the regulations that there must
be an act, not an inadvertent act caused by uncontrollable circumstances.
When the court states
that the uncovered refuse had to be there overnight,
it supports the view that if debris is
inadvertently on the ground for an hour or two until
it is discovered but when discovered
is
immediately taken to the standard transfer station, as in the present case, the inadvertent
5
placement is not, in fact, a true violation.
In the present case, as soon as the construction debris
was discovered, it was
immediately taken to the standard Shred-All transfer station, a transfer
station which had been the standard transfer station for the Respondent for the four months prior
to the alleged violation.
In the present case, at the time ofthe alleged incident, the specific procedure was in place
that the Respondent’s dispatcher would send any load ofconstruction debris out to the Shred-All
43rd
Street back transfer station as the Respondent had a contract with Shred-All to use the back
transfer station at
43r~~
Street.
Inthe normal course ofbusiness, the dispatcher would instruct any
party that came in with construction debris to the Respondent’s facility on Loomis Street to take
it to the back transfer station,
and they would do
so.
Inthe particular instance ofthe present
case,
one individual, Orheio Garcia, who was a part-time driver and who clearly and admiftedly
does not understand or speak Ei~iglishfluently, apparently misunderstood the standard instruction
and inadvertently placed his load in the back ofthe Respondent’s facility at
39th
Street.
When the
owner was advised by Mr. Robertson on August 28, 2001,
the same day the construction debris
had been dumped, he immediately caused it to be cleaned up
and sent over to the
Shred-All
transfer station.
All ofthe debris fit in one truck and was taken to the back transfer station at
Shred-All.
The Respondent then immediately investigated what happened and took steps to make
certain that nothing ofthe same nature would happen again.
Ifa truck comes to the Respondent’s
facility and uses it as a transfer station and places its load on the ground, that is certainly a
violation ofthe Act.
Even ifthe debris
is on the ground for ten seconds, it is a violation ofthe
Act.
On the other hand, ifthe clear policy is to take all such loads to the Shred-All facility back
transfer station and by mistake a part-time driver puts debris on the ground and then as soon as
6
the debris is discovered it is taken and sent to the proper Shred-All back transfer station, such an
incident is not a violation ofthe Act in the way the statutes and the regulations have been
promulgated under the reasoning underlying the decision in the Rochelle Disposal case.
Under
the facts ofthe present case, an uncontrollable circumstance which arose from the
misunderstanding ofdirections by a part-time driver who is not fluent in English is not and does
not constitute a violation ofthe Act.
CONCLUSION
Based upon the facts and principles oflaw set
forth above, the Respondent,
CITY WIDE
DISPOSAL,
INC., respectfullyrequests that the Board find that the Respondent did not violate
Section 2l(p)(l)
and (7) ofthe Act
and impose no statutory fine.
Respectfully submitted,
CITVWIDJ~PO~AL,~INC.,~
Respondent
/i
\
By:
-
~L
\
EDWARD W. PIROK
One ofits Attorneys
CARL
J.
FRANK, ESQ.
EDWARD W.
PIROK,
ESQ.
FRANK &
ASSOCIATES, LTD.
Attorneys for Respondent
CITY WIDE DISPOSAL, INC.
734 North Wells Street
Chicago, IL 60610
312.654.9020
7
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
)
OF
ENVIRONMENT,
)
)
Complainant,
)
AC 03-11
)
(CDOE No. 02-05-AC)
v.
)
)
CITY WIDE DISPOSAL,
INC.,
)
Respondent.
)
•
NOTICE OF FILING
TO:
City of Chicago Department ofEnvironment
Field Operations Division
30 North LaSalle Street, Suite 2500
Chicago, Illinois 60602
Charles A. King,
Esq.
Assistant Corporation Counsel
Chicago Department ofLaw
30 North LaSalle Street #.900
Chicago, Illinois 60602
Mr. Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center #11500
100
West Randolph Street
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the RESPONDENT CITY WIDE DISPOSAL, INC.’S POST-
HEARING BRIEF ofthe Respondent’s attorneys, FRANK & ASSOCIATES, INC., a copy of
Wh1~E~~ved
u on~y~~
Name ofAttorney or Other Representative
Edward W. Pirok
Date: July 28, 2003
Name:
EDWARD W. PIROK, FRANK & ASSOCIATES, LTD.
Address:
734 North Wells Street, Chicago, IL
60610
Telephone Number:
312.654.9020
CERTIFICATE OF SERVICE
I, the undersigned attorney, certiQ,’ that I have served the attached RESPONDENT CITY WIDE
DISPOSAL, INC.’S POST-HEARING BRIEF and NOTICE OF FILING by mail, upon the
following persons:
City ofChicago Department ofEnvironment
Field Operations Division
30 North LaSalle Street, Suite 2500
Chicago, Illinois 60602
Charles A. King,
Esq.
Assistant Corporation Counsel
•
Chicago Department ofLaw
30 North LaSalle Street #900
Chicago, Illinois 60602
Mr. Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center #11500
100
West Randolph Street
Chicago, Illinois 60601
by depositing the aforementioned documents in the United States Post Office Box at Franklin
Street and Superior Street in Chicago, Illinois, in a sealed envelope, with postage fully pre-paid,
addressed as shown above on July 28,
2003.
Edward W.~Pirok
Attorney at Law
EDWARD W. PIROK, ESQ.
FRANK & ASSOCIATES, LTD.
734 North Wells Street
Chicago, IL 60610

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