RECEIVED

BEFORE THE ILLINOIS POLLUTION

CONTROLBOARD

CITY OF CHICAGO

)

DEPARTMENT OF ENVIRONMENT,

)

Complainant,

)

ACO4-13

)

(CDOE No. 03-02-AC)

EDDIE GREER,

)

Respondent.

)

NOTICE OF FILING

(Administrative Citation)

RECEIVED

CLERK’S OFFICE

MAY

2004

STATE OF ILLINOIS

Pollution Control Board

To:

Eddie Greer

9923 S. Peoria St.

Chicago, IL 60643

(viafirst class

US. Mail)

Bradley P. Halloran

Illinois Pollution Control Board

100W.

Randolph St., Suite 11-500

Chicago, IL 60601

(via hand delivery)

Please take notice that on May 14, 2004, I filed the attached

Complainant’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, certif~’

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

maimer indicated above on May 14, 2003

A. King

(

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROLBOARD

MAY

142004

STATE OF ILLINOIS

CITY

CHICAGO

)

Pollution Control Board

DEPARTMENT OF ENVIRONMENT,

)

Complainant,

)

AC 04-13

)

(CDOE No. 03-02-AC)

EDDIE GREER,

)

(Administrative Citation)

Respondent.

)

COMPLAINANT’S POST-HEARiNG BRIEF

The City ofChicago (“City”) Department of Environment (“CDOE”), by and through its

attorney, Mara S. Georges, Corporation Counsel for the City of Chicago, submits this brief in

support of a finding ofliability on both charged violations in the above-captioned administrative

citation.

As is discussed below, the evidencepresented at the hearing establishes that the

respondent, Eddie Greer, is liable for violations ofboth sections 21(p)(1) and 21@)(7) ofthe

Environmental Protection Act, 415

ILCS

(“Act”).

Background and Procedural History

On August 14, 2003, CDOE inspector Linda Kelly conducted an inspection ofa facility

located at 601-09 West 59th Street in Chicago (the “Site”).

Based on the results ofthat

inspection, on September 18, 2003,

CDOE issued an administrative citation to

Eddie Greer, the

owner ofthe

Site, charging him with violations ofSections 21@)(1) and 21(p)(7) ofthe Act.

The

administrative citation was served on Mr. Greer personally on October 3, 2004.

On October 17,

2003, Mr. Greer filed his request for a hearing with the Board.

The hearing was held on April

2004.

Relevant Law

The administrative citation charges Mr.

Greer with violations of sections 21 (p)(1) and

2l(p)(’7) ofthe Act (415 ILCS

5/21(p)(1),

(7)).

The relevant parts ofsection 21

provide:

No person shall:

(a)

Cause or allow the open dumping ofany waste.

(p)

In violation of subdivision (a) ofthis

Section, cause or

allow the open dumping ofany waste in a maimerwhich

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) ofthis Act.

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

of a sanitary landfill.

“Refuse” is defined in section 3.385 ofthe Act (415 ILCS

5/3.385),

which provides:

“Refuse” means waste.

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

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, or

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 hereafler amended, or source, special nuclear, orby-product

materials as defined by the Atomic Energy Act of

1954,

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) or the rules and regulations

thereunder or any law or rule or regulation adopted by the

State of

Illinois pursuant thereto.

“Disposal” is

defined in section 3.185 ofthe Act (415 ILCS

5/3.185),

which provides:

“Disposal” means the discharge, deposit, injection, dumping,

spilling, leaking or placing of any 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 enter the

environment orbe emitted into the air or discharged into any

waters, including ground waters.

“General construction or demolition debris” is

defined in section 3.160(a) of the 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 ofutilities,

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 maimer

that conceals waste; electrical wiring and components

containing no hazardous

substances; and piping or metals

incidental to any ofthose materials. General construction or

demolition debris does not include uncontaminated soil

generated during construction, remodeling, repair, and

demolition ofutilities, 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 of little

orno value which has not been properly disposed of.

The

examples of litter 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) (2002), provides:

As used in

this Act, unless the context otherwise requires:

(a)

“Litter” means any discarded, used orunconsumed

substance orwaste. “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 orpaper containers or other

packaging construction material,

abandoned vehicle (as

defined in the Illinois Vehicle Code), motorvehicle parts,

furniture, oil, carcass of a dead animal, any nauseous or

offensive matter of any 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 ofan

unsightly or unsanitary nature, which has been discarded,

abandoned or otherwise disposed ofimproperly.

Thus, litter, for the purposes ofthe Act, “mayinclude, but is not limited to, any.

refuse,

debris,.

metal,.

abandoned vehicles,

motor vehicle parts.

or any thing else ofan

unsightly.

nature.”

The Evidence

At the hearing, CDOE presented the testimony ofLinda Kelly, and offered into evidence

one exhibit, which included her reports and photographs she took at the

Site.

Ms. Kelly offered

the following testimony:

Now, what conditions at the site that you observed caused

you to conclude that those violations had happened?

Because they had a lot of—to the west—you probably

couldn’t see it real good on these—from these photos.

But

they had a lot like waste soil, and theyhad construction

material like wood and other debris mixed with bricks and

stuffthat was on the ground.

***

Was it in a condition where it could have been used as

construction material?

No, it was mounded with the rest ofthe, like waste—autos,

auto parts, rubbish, waste scrap metal, all of it was mixed

up and mounded to the west.

All right.

And it was mixed with soil.

That’s not clean soil.

Thank you.

And how about the litter?

The litter was scattered litter that was all over the

site,

paper, rubber tubing, and metal embedded in the ground,

cans, garbage, some tires, paper, small—like small pieces

ofscrap metal, waste auto parts, maybe tools, small pieces

oftools, and all that scattered all over the ground.

Transcript of April 5, 2004,

hearing (“Tr.”) at 17-18.

The photographs taken by Ms. Kelly and included in Complainant’s Exhibit

document

the general condition ofthe Site

on August 14,

2003.

Both from Ms. Kelly’s description ofthe

Site

and the photographs included in Complainant’s Exhibit

1, it is glaringly obvious that open

dumping had occurred at the Site, resulting in both litter and general construction and demolition

debris being deposited on the Site.

Ms. Kelly also

testified that Mr. Greer admitted to her that a title search indicated that Mr.

Greer was the owner ofthe Site, and that Mr. Greer said to her that he had acquired the Site.

Tr.

at 22-23.

Respondent’s Defenses

In his case in chief, Mr. Greer never denied that the alleged conditions existed at the site,

nor did he deny that he was the owner ofthe Site.

It appears from his statements at the hearing

that Mr. Greer is attempting to

assert the following defenses: (a) the material on the site was

brought there by someone else; (b) the site has been cleaned up;

and (c) he had already been

charged by the City in

a different proceeding.

Regarding Mr. Greer’s first two defenses, both were addressed by the Board in

Sangamon

County Dept. ofPublic Health v. Hsueh, AC 92-79 (July

1993).

Faced with another

respondent who claimed that he did not dump material or allow anyone else to dump there, the

Board stated:

Having found that open dumping resulting in litter occurred at the

site, the Board must determine whetherMr. Hsueh “caused or

allowed” the open dumping. MrHsueh contends that he did not

dump the material or allow anyone else to dump material at the

site. However, the Board has previously held that “allow” includes

present inaction on the part ofthe landowner to remedy a

previously caused violation.

The Board has held

that passive

conduct amounts to acquiescence sufficient to find

a violation of

Section

2 1(a) ofthe Act.

Present inaction on the part ofthe

landowner to remedy the disposal ofwaste that was previously

placed on the site, constitutes “allowing” open dumping in that the

owner allows the illegal situation to continue.

Hsueh,

supra,

slip

op. at

4-5

(citations omitted).

The respondent in that case, like Mr. Greer, also argued that the propertyhad been cleaned up.

On that subject, the Board said:

Mr. Hsueh argues that he has cleaned up the property subsequent to

the issuance ofthe citation. However, the Board has previously

held that post-citation activities ofthe citation recipient are not

material to the Board’s review pursuant to

Section

31 .1(d)(2) ofthe

Act.

The Act, by its terms, does not envision a properly issued

administrative citation being dismissed or mitigated because a

person is cooperative or voluntarily cleans up the site.

Clean up of

the site is not a mitigating factor under the administrative citation

program.

The issue before the Board is whether the property on

the date of the inspection shows a violation ofthe Act.

Id.

at 3

(citations omitted).

So, neither the fact that someone else may have been responsible for bringing thematerial on

site, nor the fact that the site may have been cleaned up later, constitutes a defense to an

administrative citation.

Moreover, the Board should note that in this case while therewas

some

fly-dumped material along the fence to the Site (see Tr. at

37; Photo

4 in Complainant’s Exhibit

1), it appears that most ofthe material on the site was placed there by an associate ofMr. Greer’s,

“Columbus Don” King, with Mr. Greer’s knowledge.

See Tr. at 24, 25-27.

Mr. Greer’s final apparent defense involves his claim that the City had already fined him

in connection with this Site.

As can be seen from the discussion at pp.

29-36 and

1-56 ofthe

hearing transcript’, Mr. Greer apparently did not understand the distinction between a citation

from CDOE under the City’s environmental ordinances, adjudicated in the City’s Department of

Several statements ofMr. Greer’s are attributed to “Mr. King” in the transcript.

This is

due to typographical errors by the court reporter; it is generally clear from the context that the

speaker is Mr. Greer.

Specifically, statements

on pp. 29 and

attributed to Mr. King are

actually statements ofMr. Greer.

Administrative Hearings, and an administrative citation~adjudicated before the Board.

At the

hearing, the hearing officer properly excluded evidence regarding other proceedings as irrelevant.

See Tr.

at 56-57.

However, to allay any concern the Board may have that Mr. Greer was prosecuted twice

for the same violations, CDOE refers the Board to Division 2.1 ofArticle I ofthe Illinois

Municipal Code, specifically, Section

2 ofthat statute, 65 ILCS

5/1-2.1-2

(2002), which

provides:

Anymunicipality mayprovide by ordinance for a system of

administrative adjudication ofmunicipal

code violations to

the

extent permittedby the Illinois Constitution. A “system of

administrative adjudication” means the adjudication ofany

violation ofa municipal ordinance, except for (i) proceedings not

within the statutory or the home rule authority ofmunicipalities;

and (ii) any offense under the Illinois Vehicle Code or a similar

offense that is

a traffic regulation governing the movement of

vehicles and except for any reportable offense under Section 6-204

ofthe Illinois Vehicle Code.

This section empowers municipalities to provide for administrative adjudication ofviolations of

municipal ordinances.

Within the City’s Department ofAdministrative Hearings

are several

divisions,

which are Code Hearing Units, set up under 65

ILCS

5/1-2.1-4(a)

(2002), which

provides:

An ordinance establishing a system ofadministrative adjudication,

pursuant to this Division, shall provide for a code hearing unit

within an existing agency or as a separate agency in the municipal

government. The ordinance

shall establish thejurisdiction ofa

code hearing unit that is

consistent with this Division. The

“jurisdiction” ofa code hearing unit refers to the particular code

violations that it may adjudicate.

Environmental violations are adjudicated by the Environmental Safety Hearings Division of the

Department ofAdministrative Hearings.

The ordinance establishing the jurisdiction ofthat unit

is Section 2-14-160 ofthe Chicago Municipal Code, which provides in relevant part:

(a)

The department ofadministrative hearings shall operate a

system ofadministrative adjudication ofviolations of

sanitation code provisions.

(b)

The system shall be operated within an environmental

safety hearings division created within the department of

administrative hearings.

(c)

Forpurposes ofthis section, “sanitation code” shall mean

the provisions of Chapters 2-100, 4-4, 4-260, 7-28,

10-8,

10-32, 11-4 and Section

13-32-235 ofthe Municipal Code

ofChicago;

and additionally,

any other provisions ofthe

Municipal Code ofChicago pertaining to or regulating:

sanitation practices; forestry practices; the attachment of

bills ornotices to public property; the definition,

identification and abatement ofpublic nuisances; and the

accumulation, disposal and transportation ofgarbage,

refuse and other forms ofsolid waste in the city which are

administered or enforced by the department ofstreets and

sanitation with the exception ofthose provisions which by

theirterms are to be under the exclusive supervision ofany

department or officer ofthe city other than the department

ofstreets and sanitation orthe commissioner ofstreets and

sanitation.

Thus, thejurisdiction of the Environmental Hearings Division ofthe Department of

Administrative Hearings extends only to certain

specific municipal code violations.

The

Department ofAdministrative Hearings could not have adjudicated the violations ofthe Act

charged in the administrative citation issued to Mr.

Greer, any more than the Board could

adjudicate the violations ofthe Chicago Municipal

Code charged in the tickets Mr. Greer

received.

-I

Furthermore, as the Board noted

in People v. State Oil Co.

et al., PCB 97-103 (August 19,

1999), slip op. at

the doctrine of

resfudicata

does not apply to bar a subsequent action

between two parties involving the same subject matter if the tribunal in

the first action lacked

subject matterjurisdiction over the claims asserted in the second.

So, even if the particulars were

the

same, an action in the Department ofAdministrative Hearings would not bar this

administrative citation proceeding, because the Department ofAdministrative Hearings lacked

subject matterjurisdiction over violations ofthe Act.

Thus, there is no

resjudicata

issue

presented by any ticket issued to Mr. Greer for City code violations.

Conclusion

The testimony ofMs. Kelly and the documents and photographs admitted into evidence

establish that violations of Section 21Q)(1) and 21Q)(7) ofthe Act existed at the Site owned by

Mr. Greer on August

14, 2003.

As discussed above, the circumstances cited by Mr. Greer by

way ofdefense do not in fact provide any defense to liability.

Consequently, the Board should

find that Mr. Greer is liable forthe violations charged in the administrative citation.

Respectfully submitted,

CITY OF

CHICAGO

DEPARTMENT OF ENVIRONMENT

By:

Mara S. Georges

Corporation Counsel

Charles A. King

Assistant Corporation Counsel

Chicago Department ofLaw

By:

30 N. LaSalle St., Suite 900

Assistant Corporation

ounsel

Chicago, IL 60602

(312) 742-0330