AC 06-039
(Administrative Citation)
Respondent.
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.Complainant, )
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v.
ReCEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
JUN
2
'L
2007
STATE OF
ILLINOIS
Pollution
Control
Board
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
SPEEDY GONZALEZ
LANDSCAPING, INC.,
NOTICE OF FILING
TO:
Jeffrey J. Levine
Jeffrey J. Levine, P.C.
20 N. Clark St., Suite 800
Chicago, IL 60602
Bradley P. Halloran
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
PLEASE TAKE
NOTICE that on June 22, 2007, Complainant filed with the Clerk of the
Illinois Pollution Control
Board the attached Post-Hearing Brief, a copy of which is
served upon you.
),{J.~if~
Gra am G. McCahan
Graham G.
McCahan
Assistant Corporation Counsel
City
of Chicago Department of Law
Aviation, Environmental
&
Regulatory Division
30 N. LaSalle Street, Suite 900
Chicago, IL 60602
(312) 744-1438
CERTIFICATE OF SERVICE
The undersigned, an attorney, certifies that on June 22,2007, he caused copies ofthis
notice and the documents referenced therein to be served on the party to whom it is
directed
by U.S. Mail, first class postage prepaid.
~~
rahamGMCCahan
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT OF
ENVIRONMENT,
Complainant,
v.
SPEEDY GONZALEZ LANDSCAPING, INC.
Respondent.
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CL~FiK'~O'
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JUN 222007
STATE
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POllution
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ILLINOIS
Ontrol Board
AC 06-39
(Administrative Citation)
CITY OF CHICAGO'S POST-HEARING BRIEF
INTRODUCTION
The City of Chicago Department of Environment ("CDOE," "Complainant," or
"Compl.") alleges that Speedy Gonzalez Landscaping, Inc. ("Respondent") caused
or
allowed open dumping of waste resulting in litter, scavenging, open burning, deposition
of waste in standing water, and the deposition of general construction or demolition
debris in violation
of Sections 21 (p)(1), 21 (p)(2),21 (p)(3),21 (p)(4), and 21 (p)(7)(i) of
the Illinois Environmental Protection Act (the "Act"). 415 ILCS 5/21 (p)(1), (2), (3), (4),
and (7)(i). CDOE inspectors observed these violations at 1601 E. 130
th
Street, Chicago,
Illinois ("Site") during an inspection on March 22, 2006.
ARGUMENT
A.
Respondent Caused or Allowed Open Dumping of Waste in Violation of
Section 21(a)
1.
Open Dumping Occurred at the Site
In order to demonstrate that Respondent violated any
of the subsections to Section
21(p)
ofthe Act, it must first be shown that Respondent violated Section 21(a) of the Act.
c
415 ILCS 5/21(p).
See IEPA
v.
Shrum,
AC 05-18 (IPCB Mar. 16,2006). CDOE
demonstrated at hearing that Respondent caused
or allowed open dumping at the Site in
. violation of Section 21(a) of the Act. 415'ILCS
5/21(a).
"Open dumping" is defined as
"the consolidation ofrefuse from one or more sources at a disposal site that does not
fulfill the requirements
of a sanitary landfill." 415 ILCS
5/3.305.
"Refuse" is "waste,"
(415 ILCS
5/3.385)
and "waste" is defined to include "any garbage ... or other discarded
material" {415 ILCS
5/3.535).
The CDOE inspection report admitted into evidence as Complainant'sExhibit A
and the testimony at hearing show that broken concrete, rebar, cinder blocks, landscaping
waste, PVC piping, scrap metal, compost materials, railroad ties,
frayed wire, street signs,
wood, construction and demolition debris, used tires, plastic, an old water tanker (with
the words
"Speedy Gonzalez" painted on it), and other garbage were accumulated in
various piles on the Site on March 22, 2006. Compl. Ex. A at 6 and 9-22; Tr. at 17-20,
26, 103, 173, 190, and 201-02. At hearing, Respondent referred to the materials on the
Site as
"garbage" and admitted that, at the time ofthe inspection, he was arranging to
have some
ofthe materials disposed of at a landfill. Tr. at 173-74, 189-90, 202-03, and
209-10. The fact that the materials were taken to a landfill demonstrates that the
materials lacked productive or re-use value and, therefore, constituted
"discarded
material" within the meaning of the term "waste" and, by extension, "refuse" under
Section
2l(a) of the Act. 415 ILCS 5/21(a).
See IEPA
v.
Carrico,
AC 04-27 (IPCB Sep.
2,2004); IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20, 2004).
The waste observed on the Site on March 22, 2006 came from one or more off-
site sources
as required under Section 2l(a) of the Act. 415 ILCS
5/21
(a). Respondent
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admitted that the waste observed on the Site on March 22, 2006 fell into three broad
categories: 1) waste that was on the Site when the Site was purchased by 1601-1759 East
.130
th
Street, LLC; 2) waste that was brought onto the Site by "fly-dumpers" after the Site
was acquired
by 1601-1759 East 130
th
Street, LLC; and, 3) waste that was brought onto
the property by
E.
King [Construction] as part of an agreement with Mr. Gonzalez. Tr. at
173-74, 177-78, and 186. Because the waste observed on the Site on March
22,2006 was
brought onto the Site from external locations, it was "consolidated" on the Site from "one
or more sources" pursuant to Section 21 (a) ofthe Act. 415 ILCS 5/21 (a). Therefore, the
Site conditions observed on March 22,2006 fulfill all ofthe requirements of "open
dumping" as defined under Section 3.305 ofthe Act. 415 ILCS 5/3.305.
2.
Respondent Caused or Allowed Open Dumping on the Site
Respondent is liable for causing or allowing open dumping on the Site because
Respondent caused the dumping of certain materials. At hearing, Respondent admitted
that it had discarded the old
"Speedy Gonzalez" water tanker on the Site and that this
tanker had no productive or re-use value. Tr. at 201. Specifically, Respondent admitted
that the tanker "used to belong to the landscaping company, but it'sjust an old tanker.
It's not -
It
didn'tpass the DOT inspection, so we basically have to cut it up and throw it
away."
ld.
Respondent's statement reveals that the tanker lacked productive or re-use
value and, therefore, constituted "discarded material" within the meaning of the term
"waste" under Section 21(a) of the Act. 415 ILCS
5/21
(a).
See IEPA
v.
Carrico,
AC 04-
27 (IPCB Sep. 2,2004);
IEPA
v.
Cadwallader,
AC 03-13 (lPCB May 20,2004). The
CDOE inspection report and the testimony at hearing demonstrate that other landscaping
waste and debris - such as compost material, wood, fencing material, cinder blocks, and
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mesh netting commonly used in landscaping - had also been discarded on the Site.
CompI. Ex. A at 6-11; Tr. at
19,25-28, and 109-10.
Under Illinois law, a waste generator can be held liable for "causing or allowing"
open dumping
under Sections 21(a) and 21(p) ofthe Act.
See People
v.
McFalls, 313
Ill.App.3d 223,227 (3
rd
Dist. 2000);
People
v.
Poland,
PCB 98-148 (IPCB Sep. 6, 2001);
IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20,2004). The court in
People
v.
McFalls
stated:
[N]either ownership, nor control, of an allegedly illegal disposal site is
necessary to effect the consolidation
of refuse there. Therefore, an off-
site generator, as a
"person," may "cause" "open dumping" within the
plain
meaning of subsections 21 (a) and 21 (P)(1). Accordingly, we hold
that off-site generators fall within the class of persons who may violate
these subsections. 313 IlI.App.3d at 227.
Respondent disposed
of waste on the Site, and therefore, is liable for causing and
allowing the
open dumping observed at the Site on March 22, 2006 in violation of
Section 21(a) of the Act. 415 ILCS
5/21
(a).
Respondent is also liable for causing and allowing open dumping on the Site
because
of Respondent's "capability to control the...site ofpollution."
See IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20,2004). For example, Respondent admitted to
having a flatbed on the Site, which was used for storing playground equipment at off-site
projects. Tr. at 201. Although the flatbed does not qualify as
"waste" if it is being used
for Respondent's landscaping business, the presence
of the Respondent's flatbed, as well
as the discarded
"Speedy Gonzalez" water tanker and other landscaping waste and
materials, reveals the degree to which Respondent had access to and control over the Site.
In order to utilize the flatbed or other property for off-site projects, Respondent would
need to have access to the Site in order to retrieve its property. In addition, Respondent
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would need to exercise control over the Site to ensure that its property was secure.
Because Respondent had the capability to control the site of the pollution observed on the
Site on March 22, 2006, Respondent violated Section 21(a) ofthe Act. 415ILCS
5/21
(a).
B.
Respondent's Open Dumping Resulted in Litter
in
Violation
of Section
21(p)(1)
Respondent's causing or allowing open dumping of wastes resulted in "litter"
under Section 21 (P)(1) of the Act. 415 ILCS 5/21 (p)(1). The Act does not define "litter"
but it is defined in the Litter Control Act as:
"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, ... metal, .
. . motor vehicle parts,
... or anything else of an unsightly or unsanitary
nature, which has been discarded, abandoned
or otherwise disposed of
improperly. 415 ILCS
105/3(a).
The Board has previously applied this definition of"litter" to open dumping allegations.
See St. Clair County
v.
Louis
1.
Mund,
AC 90-64 (lPCB Aug. 22, 1991). Using this
definition, the old "Speedy Gonzalez" water tanker, compost materials, landscaping
debris, mesh netting and railroad ties found at the Site are discarded materials and
constitute "litter" under Section
21 (p)(1) ofthe Act. Tr. at 17, 20-21,
25~28,
103, 109-10,
173, 190, and 201-02; CompI. Ex. A. at 6-7, 9-12, and 14-16. Accordingly, the Board
should find Respondent violated Section
21 (p)(1).
C.
Respondent's Open Dumping Resulted in Scavenging in Violation of Section
21(p)(2)
Respondent's open dumping ofthese wastes also resulted in scavenging in
violation of Section 21 (p)(2) of the Act. 415 ILCS 5/21 (p)(2). "Scavenging" is not
defined in the Act, but under the Illinois Administrative Code, "scavenging" is defined as
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"the removal ofmaterials from a solid waste management facility or unit which is not
salvaging." 35 Ill.Adm.Code 810.103. "Salvaging" is in tum defined as:
[T]he return
of waste materials to use, under the supervision of the landfill
operator, so long as the activity is confined to an area remote from the
operating face
of the landfill, it does not interfere with or otherwise delay
the operations
of the landfill, and it results in the removal of all materials
for salvaging from the landfill site daily
or separates them by type and
stores them in a manner that does not create a nuisance, harbor vectors or
cause an unsightly appearance. 35 IlI.Adm.Code 810.103.
The Board has used these administrative definitions
of "scavenging" and "salvaging" in
determining a respondent's liability under Section 21(p)(2)
of the Act.
See County of
Jackson
v.
Easton,
AC 96-58 (IPCB Dec. 19, .1996).
The CDOE inspection report admitted into evidence as Complainant'sExhibit A
and the testimony at hearing show that people were sorting and segregating materials on
the Site for the purpose
ofreturning some of the materials to productive use. CompI. Ex.
A at
6; Tr. at 21,29, and 203. Respondent admitted that steel was being taken out ofthe
waste materials on the Site in order to be recycled in exchange for money. Tr. at 203.
Because the Site was not permitted as a landfill, the return
of any waste materials on the
Site
to productive use could not conform to the definition of "salvaging" contained in the
Illinois Administrative Code. This definition
of "salvaging" requires that "salvaging"
activities take place at a "landfill" and under the supervision
of a "landfill operator." 35
Ill.Adm.Code 810.103. This Site constituted an unpermitted "open dump," not a
permitted "landfill." Therefore, any removal
ofmaterials from the Site for the purpose of
returning them to productive use must constitute "scavenging" and not "salvaging." In
addition, the materials that were to be returned to productive use were stored on the Site
in such a manner
as to cause an "unsightly appearance." Compl. Ex. A at 9 and 11-17.
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The segregation ofmetal materials at the Site and their improper storage constituted
"open dumping
ofwaste in a manner that results in ... scavenging" under Section
21 (p)(2) of the Act, and therefore, Respondent violated that section.
D.
Respondent's Open Dumping Resulted in Open Burning in Violation of
Section 21(p)(3)
Respondent'sopen dumping of these wastes also resulted in open burning in
violation
of Section 21 (p)(3) ofthe Act. 415 ILCS 5/21 (p)(3). "Open burning" is
defined in Section 3.300
of the Act, as "the combustion of any matter in the open or in an
open dump." 415 ILCS 5/3.300.
The CDOE inspection report admitted into evidence as
Complainant's Exhibit A and the testimony at hearing show that wood
or landscaping
debris was being burned in the open at the Site on March 22, 2006. Compi. Ex. A at 6
and 18-19; Tr. at 9, 17-18, 195-96. Respondent admitted that people were burning wood
on the Site on March 22, 2006. Tr. at 195-96.
As discussed above, the Site constituted
an open dump.
The burning of waste at the Site constituted "open dumping of waste in a
manner that results in
... open burning" under Section 21(p)(3) ofthe Act, and
therefore, Respondent violated that section.
E.
Respondent's Open Dumping Resulted in Waste Standing in Water in
Violation of Section 21(p)(4)
Respondent's open dumping of these wastes also resulted in deposition of waste
in standing water in violation
of Section 21 (P)(4) of the Act. 415 ILCS 5/21 (P)(4). The
CDOE inspection report admitted into evidence as Complainant'sExhibit A and the
testimony at hearing show that piles
of waste, including cinder blocks (which are often
used in landscaping), were standing
in water on the Site. Compi. Ex. A at 15 and 18-19;
Tr.
at 19-20. As discussed above, the Site constituted an open dump. The waste found
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sitting in water at the Site constituted "open dumping ofwaste in a manner that results in
... waste standing in water" under Section 21 (p)(4) of the Act, and therefore, Respondent
violated that section.
F.
Respondent's Open Dumping Resulted in Deposition
of General
Construction or Demolition Debris
in
Violation
of Section
21(p)(7)
Respondent's open dumping of these wastes also resulted in deposition ofgeneral
construction
or demolition debris in violation of Section 21 (p)(7) of the Act. 415 ILCS
5/21 (p)(7). "General construction or demolition debris" is defined in Section 3.160 of the
Act as:
[N]on-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 roof
coverings; 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
or metals incidental to any
of those materials. 415 ILCS 5/3.160.
The CDOE inspection report admitted into evidence as Complainant'sExhibit A and the
testimony at hearing show that materials from construction, remodeling, repair or
demolition activities - such as bricks, rebar, asphalt, broken concrete, PVC piping, soil,
scrap metal and wood - were present at the Site on March 22, 2006. CompI. Ex. A
at 6,
12-17, and 21-22; Tr. at
19,25,29, 161 and 202. Respondent admitted that construction
and demolition debris observed on the Site on March 22, 2006 had been dumped by E.
King. Tr. at 177-79, and 202. These materials constituted "open dumping of waste in a
manner that results in ... deposition of general construction or demolition debris" under
Section 21 (p)(7)(i) of the Act, and therefore, Respondent violated that section of the Act.
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.,
v
CONCLUSION
The CDOE inspection report, photographs, and testimony show that Respondent
caused or allowed open dumping
of waste resulting in litter, scavenging, open burning,
deposition
ofwaste in standing water, and the deposition of construCtion or demoIltion
debris in violation of Sections 21 (P)(1), 21 (P)(2), 21 (p)(3), 21 (P)(4), and 21 (P)(7) ofthe
Illinois Environmental Protection Act. 415 ILCS 5/21 (p)(l), (2), (3), (4),
and (7). CDOE
respectfully requests that the Board enter a final order finding that Respondent violated
these sections and imposing the statutory penalty
of$7500 ($1500 for each violation).
Respectfully submitted,
CITY OF CHICAGO
DEPARTMENT OF ENVIRONMENT
Mara
S. Georges, Corporation Counsel
:~~
J ifer A. ur e
Dated: June 22, 2007
Jennifer
A. Burke
Graham
G. McCahan
City
ofChicago Department of Law
Aviation, Environmental
&
Regulatory Division
30 N. LaSalle Street, Suite 900
Chicago,
IL
60602
(312) 742-3990/744-.1438
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