BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
JOSE R. GONZALEZ,
)
)
)
Complainant, )
)
)
)
)
)
)
RECEIVED
CLERK'S OFFICE
JUN 222007
STATE
OF ILLINOIS
PollutIon
Control
Board
AC 06-040
(Administrative Citation)
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.
~,,==£1~
raham 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
railaIllG:MCCahan
The undersigned, an attorney, certifies that on June 22, 2007, he caused copies of this
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.
~
172;/
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
JOSE R. GONZALEZ,
)
)
)
Complainant, )
)
)
)
)
)
)
RECEIVED
CLERK'S OFFICE
JUN 222007
STATE OF ILLINOIS
Pollution
Control
Board
AC 06-40
(Administrative Citation)
CITY OF CHICAGO'S POST-HEARING BRIEF
INTRODUCTION
The City
of Chicago Department ofEnvironment ("CDOE," "Complainant," or
"Compl.") alleges that Jose R. Gonzalez ("RespondenC') 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) ofthe 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. CompI. Ex. A at 6-22. Although
Respondent claimed ownership
of the Site during the hearing, at the time ofthe CDOE
inspection, the Site was owned
by 1601-1759 East 130
th
Street, LLC, an Illinois limited
liability company. CompI. Ex. B; Beddard
l
Tr. at 101, 134-36.
J The hearing for AC 06-40 took place over two days and utilized three separate court reporters. Because
each court reporter started her transcript at page
I, the transcripts have overTapping page numbers. This
brief will refer to each transcript by the last name of the court reporter in order to avoid confusion. The
name of the court reporter (Manzo, O'Donnell, or Beddard) appears on the first and last page of the
transcript for each session.
1
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)
ofth~
Act, it must first be shown that Respondent violated Section 21 (a) ofthe Act.
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) ofthe Act. 415ILCS
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, scrap metal, compost materials,
landscaping debris, railroad
ti~s:
'street signs, wood, construction debris, used tires, and
ash and remains from
burning were accumulated in various piles on the Site on Match 22,
2006. CompI. Ex. A at
6, and 9-22; Manzo Tr. at 12-13; O'Donnell Tr. at 4-5; Beddard
Tr. at 10, 111-12. Respondent admitted that some time after March 22, 2006, at least
some
of the waste that is the subject of this action was disposed of at three separate
landfills: Tri-State Disposal, Lincoln [Disposal], and the CID Landfill. Beddard Tr. at
127-32. The fact that the materials were taken to landfills demonstrates that the materials
lacked productive or re-use value and, therefore, constitute "discarded material" within
the meaning
of the term "waste" and, by extension, "refuse" under Section 21 (a) of the
2
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 21(a) of the Act. 415 ILCS 5/21 (a). Respondent
admitted that the waste observed on March 22, 2006 fell into three broad categories:
1)
waste that was on the Site when 1601-1759 East 130
th
Street, LLC purchased the Site; 2)
waste that was brought onto the Site
by "fly-dumpers" after 1601-1759 East 130
th
Street,
LLC acquired the Site; and, 3) waste that was brought onto the property
by E. King
[Construction] as part
of an agreement with the Respondent. Beddard Tr. at 106-09, 111-
14. Since the waste observed on the Site on March 22, 2006 was brought onto the Site
from extemallocations, it was "consolidated" on the Site from
"one or more sources"
pursuant to Section 21(a)
of the Act. 415 ILCS 5/21 (a).
The Site does not meet the requirements of a sanitary landfill and is not permitted
as such. Respondent admitted that the Illinois Environmental Protection Agency
("IEPA") has not issued a permit for any operations on the Site. Beddard Tr. at 134.
Therefore, the Site conditions observed on March 22, 2006 fulfill all
of the 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 caused or allowed the open dumping observed on March 22,2006
because he controlled access to and operations on the Site. The Board has held that
ownership
ofproperty is not a prerequisite to violating Section 21 (p) of the Act, but a
complainant must show that the alleged open dumper had control over the source
or site
of pollution.
See IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20,2004);
IEPA
v.
3
Pekarsky,
AC 01-37 (IPCB Feb. 7, 2002). Although the last recorded transfer of the Site
shows that 1601-1759 East 130
th
Street, LLC is the owner ofrecord (CompI. Ex. B), the
Respondent at hearing showed significant personal knowledge
of the Site and personal
involvement with activities at the Site. For
example, Respondent repeatedly referred to
the Site as his property and described in detail his preparations and future plans for the
Site, as demonstrated in the following exchange between Mr. Levine (Respondent's
counsel) and Respondent:
Q.
And are you the owner
of the property at 1601 East 130
th
Street?
A.
Yes.
Q.
Did you acquire the property in the winter oflate 2005/early 2006?
A.
Yes.
Q.
Do you know the specific date you acquired it?
A.
I
don'tremember offthe top ofmy head.
Q.
Okay. When you acquired the property - what do you plan to do
with the property?
.
A.
The property when I was -
I'm having - It's in a design state right
now. The blueprints for the property are probably,
like, 80 percent
done.
I'm going to develop the property. I'm going to put
commercial precast buildings on
it, and I'm going to set up my
company there.
We're to going to put six buildings, about 36,000
square feet each building, and we're going to lease out the space to
tenants for the Ford Company.
Beddard Tr. at 101-02; see also Beddard Tr. at
103-07, 112, 115,
and 134-37,
Respondent also demonstrated substantial personal knowledge and involvement with the
post-March
22, 2006 removal of waste from the Site. Beddard Tr. at 127-32. For
example, Respondent knew the particular landfill destination for each type ofwaste
material and arranged to use a
friend's account to dump materials at one of the landfills.
Beddard Tr. at 127-32. Respondent acknowledged that during the
springof2006 he had
workers on the Site spreading gravel in order to facilitate clean up and development
of
the Site. Beddard Tr. at 105-06. On the day ofthe CDOE inspection, Respondent was
4
present at the Site and attempted to exercise control over the Site by asking the CDOE
inspector to leave the property. O'Donnell Tr. at 25; CompI. Ex. A
at 6. Respondent's
overall knowledge
of and involvement with the Site demonstrate that he had sufficient
control over the movement
of trucks, people and materials onto and off of the Site to be
. liable for "causing and allowing open dumping" under Illinois law.
In addition, dumping could only occur at the Site
if the Respondent either failed
to secure the driveway
or allowed trucks to enter. The only vehicle entrance to the Site
was a gravel driveway secured
by a gate with a lock on it. Manzo Tr. at 9; O'DonnellTr.
at 86 and 124; Beddard Tr. at 8 and 17. Vehicles were unable to access the Site at other
points because the Site was otherwise surrounded
by a fence, a large berm, and train
tracks. CompI. Ex. A. at
8, 14, 18, and 20. Respondent admitted that if the front gate
was secured, the berm was sufficient to keep trucks off of the Site. Beddard Tr. at 108.
Respondent also admitted, however, that
he provided a key to E. King and that E. King
dumped between 1,000 to 1,500 cubic yards
ofwaste onthe Site. Beddard Tr. at 114 and
134.
Respondent claimed that fly-dumpers and E.
King dumped materials at the Site
without his permission. Beddard Tr. at 107 and 112-14. However, a person can cause
or
allow open dumping in violation ofthe Act without knowledge or intent.
See County of
Will
v.
Utilities Unlimited, Inc.,
AC 97-41 (IPCB July 24, 1997),
citing, People
v.
Fiorini,
143 Ill.2d 318,574 N.E.2d 612 (1991). In
County ofJackson
v.
Donald Taylor,
AC 89-
258 (IPCB Jan. 10, 1991), Mr.
Taylor admitted to an ownership interest in land and to
dumping some materials there,
but denied the majority of the dumping as well as starting
the fire.
Jd.
In finding violations of Section 21(q) (now Section 21 (p)), the Board found
5
that the fact that Mr. Taylor did not specifically allow the dumping or burning was not
dispositive and that "the debris
he placed on the property, may in fact have encouraged
others to dump there."
Id.
The facts in Respondent's case are analogous to Mr. Taylor's
case, and the Board should similarly find Respondent liable for open dumping.
Respondent claimed that some
of the waste on the Site was present when he
purchased the property. Beddard Tr. at 102. A certified copy
of the last recorded deed
shows that ]60]-1759 East Both Street, LLC purchased the property in January 2005-
approximately 15 months prior to the inspection on March 22, 2006. CompI. Ex. B;
Beddard Tr. at 134-35. The Board has held that an owner who allows waste to remain on
its property after acquiring the property is liable for open dumping.
See IEPA
v.
Cadwallader,
AC 03-] 3 (IPCB May 20, 2004). Because Respondent allowed waste to
remain on the Site for approximately 15 months, he should be found liable for causing or
allowing open dumping.
Respondent further stated that he was trying to clean up the Site and sorting the
waste in order to dispose of it at nearby landfills. Beddard Tr. at ]27-32. The Board has
repeatedly held that clean up efforts are
not a defense.
See City ofChicago
v.
City Wide
Disposal, Inc.,
AC 03-] 1 (IPCB Sept. 4, 2003);
County ofJackson
v.
Easton,
AC 96-58
(IPCB Dec. 19, ]996).
As stated above, a person can cause or allow a violation of the
Act without knowledge or intent. Accordingly, none of these arguments by Respondent
provides a defense to the proven allegations. Respondent is therefore personally liable
for causing and allowing the open dumping
of waste as observed at the Site on March 22,
2006 in violation of Section 21(a) of the Act. 415 ILCS 5/2] (a).
6
B.
Respondent's Open Dumping Resulted in Litter in Violation of Section
21(p)(l)
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 (IPCB Aug. 22, 1991). Using this
definition, the scrap metal, compost materials, landscaping debris, railroad ties, street
signs, treated wood, and used tires found at the Site are discarded materials and constitute
"litter" under Section 21(p)(1)
ofthe Act. Manzo Tr. at 12-13; O'DonnellTr. at 4-5;
Beddard Tr. at ] 0,
]] ]-12; CompI. Ex. A. at 6-7, 9-12, and 14-16. Accordingly, the
Board should find Respondent violated Section
2] (P)(1).
c.
Respondent's Open Dumping Resulted in Scavenging in Violation of Section
21(p)(2)
Respondent'sopen dumping ofthese wastes also resulted in scavenging in
violation
of Section 2] (p)(2) of the Act. 4] 5 ILCS 5/2] (p)(2). "Scavenging" is not
defined in the Act, but under the Illinois Administrative
Code, "scavenging" is defined as
"the removal
ofmaterials from a solid waste management facility or unit which is not
salvaging." 35 IlI.Adm.Code 8]
0.1 03. "Salvaging" is in turn defined as:
[T]he return
ofwaste 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
7
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 Ill.Adm.Code 810.103.
The Board has used these administrative definitions
of "scavenging" and "salvaging" in
determining a respondent'sliability under Section
21 (p)(2) ofthe Act.
See County of
Jackson
v.
Easton,
AC 96-58 (lPCB Dec. 19, 1996).
The CDOE inspection report admitted irito evidence as Complainant'sExhibit A
and the testimony at hearing show that people were sorting and segregating materials on
the Site for the purpose
of returning some of the materials to productive use. CompI. Ex.
A at 6; O'DonnellTr. at 14-15; Beddard Tr. at 11-12,117-18; Respondent admitted that
metal was being taken out
of the waste materials on the Site in order to be recycled.
Beddard Tr. at 118. 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. As discussed above, the. Site constituted
an unpermitted "open dump," not a permitted "landfill." Therefore, any removal of
materials 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." CompI. Ex. A at 9 and 11-17. The segregation of metal
materials at the Site and their improper storage constituted "open dumping of waste in a
manner that results in ... scavenging" under Section 21 (p)(2) of the Act, and therefore,
Respondent violated that section.
8
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'sExhibit A and the testimony at hearing show that materials were being
burned in the open at the Site on March 22, 2006. CompI. Ex. A at 6 and 18-19; Manzo
Tr. at 8; O'Donnell Tr. at 15-16. The first CDOE inspector to arrive at the Site that day
observed open flames and smoke. CompI. Ex. A at 6 and 18-19; O'Donnell Tr\
at 15-16.
A CDOE inspector who arrived later observed ashes at the Site. Beddard Tr. at 11-12.
As discussed above, the Site constituted an open dump. The burning
of waste at the Site
constituted
"open dumping ofwaste in a manner that results in ... open burning" under
Section
21 (p)(3) of the 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 large piles
ofwaste were standing in two to three inches
of water on the Site. CompI. Ex. A at 15 and 18-19; O'Donnell Tr. at 6, 102; Beddard Tr.
at 60. As discussed above, the Site constituted an open dump. The waste found sitting in
water at the Site constituted
"open dumping of waste in a manner that results in ...
9
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'sopen dumping of these wastes also resulted in deposition of general
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 ofthe
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, broken concrete, wiring, PVC piping, soil, wood
and commingled scrap metal - were present at the Site on March 22, 2006.
CompI, Ex. A
at 6, 12-17, and 21-22; Manzo Tr. at 12-13; Beddard Tr. at 10. Respondent admitted that
construction and demolition debris observed
on the Site on March 22, 2006 had been
dumped
by E. King. Beddard Tr. at 112-14. These materials constituted "open dumping
ofwaste in a manner that results in ... deposition ofgeneral construction or demolition
debris" under Section
21 (p)(7)(i) of the Act, and therefore, Respondent violated that
section
of the Act.
10
. ,
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
of waste in standing water, and the deposition of construction or demolition
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
ofthe City of Chicago
.~
BY:~!_C=
J
y
i
ifer A.
rke
Dated: June 22, 2007
Jennifer A. Burke
Graham
G. McCahan
City of Chicago Department of Law
Aviation, Environmental
&
Regulatory Division
30 N. LaSalle Street, Suite 900
Chicago,
IL
60602
(312)
742-3990/744-1438
11