CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
v.
1601-1759 EAST 130
th
STREET, LLC,
Respondent.
)
)
)
)
)
)
)
)
)
)
AUG 0 G2007
STATE OF ILLINOIS
Pollution Control Board
Site Code:0316485 I03
AC: 2006-041
(CDOE No. 06-01-AC)
NOTICE OF FILING
TO:
Mr. Bradley P. Halloran
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Ms. Jennifer
A.
Burke
City
of Chicago, Dept. of Law
30 North La Salle Street, Suite 900
Chicago, Illinois 60602
PLEASE TAKE NOTICE that we have this
day filed with the Clerk ofthe Illinois
Pollution Control Board, Respondent's Post-Hearing Brief and Motion for Leave to File Post-
Hearing Brief
Instanter. Dated at Chicago, Il . ois, this 6
th
day of August, 2007.
JF
Y
J. LEVINE, P.C.
Att
ne for Respondent
1601- 59 EAST 130
th
STREET, LLC
Jeffrey
J. Levine, P.c. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
PROOF OF SERVICE
The undersigned, being first duly sworn on oath, deposes and says that he served a copy of
the Notice together with the above mentioned documents to the person to whom said Notice is
directed by hand delivery, this 6
th
day of Augu 2007.
1. LEVINE, P.c.
AUG 0 62007
STATE OF ILLINOIS
Site Code:03 I6485 I03
Pollution Control Board
AC: 2006-
41
(CDOE No. 06-01-AC)
Complainant,
Respondent.
v.
1601-1759 EAST 130
th
STREET, LLC,
BEFORE THE ILLINOIS POLLUTION CONTROL
BOAR~ECEIVED
CLERK'S OFFICE
CITY OF CHICAGO DEPARTMENT
)
OF ENVIRONMENT,
)
)
)
)
)
)
)
)
)
MOTION FOR
LEAVE
TO FILE POST-HEARING BRIEF INSTANTER
Now comes the Respondent, 1601-1759 EAST I30
th
STREET, LLC, by and through its
counsel Jeffrey
1. Levine, P.c., and for its Motion for Leave to File Post-Hearing Brief Instanter,
states and asserts as follows:
I. Respondent'sbriefwas due on Friday, August
3, 2007, and counsel for Respondent sought
to complete and file all pleadings in all the related matters
by that date.
3. Counsel could not complete all pleadings by that date, as he was required to prosecute for
a municipality
on Friday afternoon. Said counsel did not wish to file the pleadings in part.
Respondent therefore seeks to file his Post-Hearing Brief and the related pleadings instanter.
4. Counsel for Complainant has no objection to the instant Motion as long as adequate time
for the filing
of the Reply is provided.
Wherefore, for the above and forgoing reasons, Respondent Speedy Gonzalez Landscaping,
Inc., prays that it be granted leave to file its Post-Hearing Briefand other pleadings instanter and for
such further relief as is
just and equitable.
Jeffrey
J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
v.
1601-1759 EAST l30
th
STREET, LLC,
Respondent.
)
)
)
)
)
)
)
)
)
)
Site Code:03164851 03
AC: 2006- 41
(CDOE No. 06-01-AC)
RECEIVED
CLERK'S OFFICE
AUG 0 G2007
STATE
OF ILLINOIS
Pollution Control BoarD
1601-1759 EAST
Both
STREET, LLC'S POST HEARING BRIEF
Now comes the Respondent, 1601-1759 EAST l30
th
STREET, LLC, by and through its
counsel Jeffrey
J. Levine, P.C., and for its Post-Hearing Brief, states and asserts as follows:
Introduction
1. Respondent 1601-1759 EAST 130
th
STREET, LLC, is a corporation owned by Jose R.
Gonzalez who works as a minority contractor in Chicago. He runs Speedy Gonzalez Landscaping,
Inc., and has acquired an interest in property located at 1601-1759 East 130
th
Street. When he
acquired the property is was loaded withjunk. The waste was an issue in purchase negotiations. May
17,2007, Tr. 102. The property sits next to the CID landfill. He seeks to develop the property, build
buildings on the land and lease the property to the Ford Motor Company. May 17,2007, Tr. 102. He
has already performed extensive testing on the property, particularly to determine whether there was
a gas station tank on the property. Also, tests were performed as to whether the landfill was leaching
waste into the property.
2. On March 22, 2006, with Investigator Raphael Macial at the wheel, a carload of city
attorney's and investigators drove onto the property. Although Mr. Macial said that the gate was
open, Mr. Antonopoulos testified that an
E. King employee opened the gate and that an E. King truck
was being loaded up with debris and waste. May 17,2007, Tr. 19-20. Mr. Antonopoulos testified
that the gate was secured with a combination lock. May 17,2007, Tr.
8, 17,27. With no warrant and
no complaints pending Macial stated he saw smoke coming from the site. Macial knew Mr. Gonzalez
growing up.
3. Although Investigator Macial testified (May 9,2007, Tr. 9, Manzo transcript), that he just
happened upon the site, it is clear from testimony that he had previously viewed the site two weeks
before (May 9, 2007, Tr. 80-1) and knew that it was connected to Jose Gonzales, an individual he
previously had dealings with. Macial testified that he was on the top
ofthe
cm
landfill every month
and from the top
of the landfill, he could see the property in question. May 9, 2007, Tr. 107-10. A
truck parked on the property had the name
ofMr. Gonzalez'scompany painted on it. May 9, 2007,
Tr. 110. Mr. Gonzalez was not on site when the investigators appeared after indicating seeing smoke.
4. Another investigator, Chris Antonopoulos testified that Mr. Maciel had prior dealings with
Mr. Gonzalez. May 17, 2007, Tr. 25-6. (In Respondent's Post-Hearing Brief regarding Speedy
Gonzalez Landscaping Inc., AC 2006-39, evidence is presented that Macial had previously asked
Gonzalez for a bribe and was threatened when he did not pay). Also see: Motion to Dismiss Actions.
Investigation
5. The investigation never learned the identity of individual involved in the burning. No
attempts were made by the Department
of Environment to photograph any of the workers or learn
their names. May 17,2007, Tr. 31-5 Investigators had a meeting on site and interviewed individuals
from
E. King whose trucks were on site, as well as representatives of the CTA and Paschen
Construction. May
9, 2007, Tr. 44-5; May 17,2007, Tr, 31- 2.
6. No mention was made in the investigation report that Elaine King was present on site
discussing the agreement. May 9, 2007,
Tr. 44-9. Macial testified that he selectively excluded
information in drafting his investigation report, and that he had been taught to conduct investigations
in this manner. May
9,2007, Tr. 48-52.
7. Investigator Mr. Antonopoulos testified that an inspector'sjob is to determine where the
waste came from. May
17, 2007, Tr. 20. He testified that a more through investigation should have
been performed because the Department
ofEnvironment didn'thave all the facts. He further testified
that he did not feel comfortable charging individuals and entities when an adequate investigation had
not been performed. He believed that he would be remiss in his duties
ifhe had performed the type
of investigation performed in the instant case. May 17,2007, Tr. 24-5.
8. Even Mr. Macial agreed that the investigation was not thorough. May 9, 2007, Tr. 78.
Macial testified that he just assumed that Mr. Gonzalez "was doing something illegal." May 9,2007,
Tr. 83. Antonopoulos agreed that a ticket cannot be written without
proof of a violation. May 17,
2007, Tr. 43. He concluded that
" .. .it was easier to ticket Mr. Gonzalez than conduct an adequate
investigation
..." May 17,2007, Tr. 95.
9. That debris was on the property
is uncontested. However, Respondent Jose Gonzalez did
not cause or allow the debris. Numerous photographs were taken
of the site which revealed four
separate types
ofdebris which were identified on the site:
I).
Debris from the CTA Brown Line; 2).
trash that was constantly being fly-dumped; 3) tires, signs and material which was on the property
when purchased; and 4). material that is in the soil.
CTA Construction Debris
10. Both investigators, Antonopoulos and Macial, testified regarding an agreement entered
into regarding what has been deemed the "suspect CTA waste" at the property in question. Mr.
Antonopoulos described how the agreement was between
Mr. Gonzalez, Paschen Construction, E.
King and Chuck Webber ofthe CTA. The agreement called for CTA waste material from the Brown
Line construction, to be stored in roll-off boxes over the weekend at the site in question. May 17,
2007, Ir. 31, 86-90; May 9, 2007, Ir. 44, 59-60.
11. Mr. Weber admitted that the waste was CTA material. May 9, 2007, Tr. 42. At the
hearing Mr. Gonzalez also explained his agreement to store CTA waste in trucks or roll-offs over
the weekend. May 17, 2007, Tr. 113-16 118-21. When the
cm
landfill opened, the roll-off boxes
would be removed from the property and brought to ClD. May 17,2007, Tr. 31.
12. E. King needed a place to store it'strucks (or roll-off carriers), full of debris, over the
weekend because the
cm
landfill next door was closed over the weekend. Gravel was also required
to support the E. King trucks. In an effort to make the storage pay for the gravel road needed, Mr.
Gonzalez offered to rent the land to
E. King. He stated that in order to clean the property, he had to
purchase over twenty dump truck loads
of gravel and construct a gravel road to gain access to the
back
ofthe property. May 17,2007, Tr. 104-05. He stated that the gravel was also used to stop water
from forming. May 17, 2007, Tr.
Ill. Mr. Gonzalez testified that the prior owner had lowered the
grade
of the property when he built the berm. May 17, 2007, Tr. 122.
13. Complainant'sinvestigation revealed that, either E. King or Paschen Construction didn't
follow the agreement to store the waste in the roll-off trucks. Antonopoulos testified that an
investigation would have revealed the specific entity that didn'tfollow the agreement and dumped
the CTA debris at the site. May
17, 2007, Tr. 33. It was that entity who caused the CTA waste to
be deposited at the property in question. May
17, 2007, Tr. 49. Mr. Antonopoulos had no
information that Mr. Gonzalez knew that the agreement was violated and materials were not kept
in boxes. May 17,2007, Tr. 76.
14. The investigators collected manifests (See: Respondents Exhibit A), at the site which
indicate that the waste material came from the
CIA at 567 West Lake Street. May 9, 2007, Tr. 33-6.
E. King was the hauler on the manifests. May 9, 2007, Tr. 83-4. Mr. Antonopoulos testified that Mr.
Maciel had the hazardous waste manifests on the day
of the investigation. May 17,2007, Tr. 44-5.
IS. When it was disclosed to Mr. Gonzalez that
E. King's trucks, working for Paschen
Construction, had dumped CTA waste in his yard while hauling for Paschen Construction, contrary
to the agreement to store the material in roll-off boxes,
Mr. Gonzales immediately and vociferously
demanded that the waste be cleared from the property. May 17, 2007, Tr.
lIS.
Fly dumping
16. Although surrounded by a mound and a locked gate fence, fly-dumpers regularly gain
access to the property. Chris Antonopoulos testified that the gate to the site was secured with a
combination lock. May 17, 2007, Tr.
8,17,27. Mr. Gonzalez testified that debris on his property is
caused by fly-dumpers who are always attempting
to gain access to the property. They have knocked
down his gate, cut his locks and pulled the gate
off the hinges. May 17, 2007, Tr. 107-08.
Antonopoulos testified that numerous piles
of debris on the site look like "classic fly dumping".
Antonopoulos testified that if someone had fly dumped on the property, then the owner would not
have caused or allowed the debris. May 17,2007, Tr. 28-9.
17. When material is being fly-dumped, it is not segregated into different types ofmaterials.
Mr. Macial explained that ifloads were sent to the CID landfill containing copper, PVC tubing or
railroad ties, the entire load would be rejected. May
9, 2007, Tr. 118-19. Antonopoulos also testified
that such loads would be rejected by the landfill. May 17,2007, Tr. 50-2.
18.
If an entity had discovered fly-dumped material on his property, Mr. Antonopoulos
testified that the owner would be required to segregate the dumped material prior to taking it to a
landfill or transfer station. Mr. Antonopoulos testified that the segregation
ofwaste piles and moving
of piles and loading of debris was consistent with an entity or individual cleaning up the site. May
17,2007, Tr. 53-4. Mr. Antonopoulos concluded that, in the course of he investigation he had no
information that segregation
ofmaterial in the course ofcleaning the site was not what was occurring
at the site. May 17,2007, Tr. 52. He further agreed that the photos in Exhibit
A, pages 9-17, indicate
fly dumping. May
17,2007, Tr. 93-4.
Debris in soil and on site when purchased
19. A berm
of dirt surrounds the property to keep out illegal dumpers. Antonopoulos didn't
know where the berm came from, but noticed that it had vegetation growing on
it, including a tree,
and could have been there for years. May 17,2007, Tr. 61,63-4. While Antonopoulos believed the
berm could contain waste (May 17,2007, Tr. 11), Macial testified that construction and demolition
material could have been in the soil as a result
of prior construction or even the Chicago fire. May
9,2007, Tr.
91-4. Mr. Gonzalez testified how the prior owner took the grade ofthe site down a foot
and built the berm to stop fly dumpers. May 17,2007, Tr. 122.
Allegations
20. Respondent was charged with causing or allowing open dumping. The allegations also
contained baseless allegations regarding securing the property, salt unloading operations, ACM or
asbestos, waste next to residential homes and oil flowing into the sewer. These allegations are listed
as attachment
"B" in Complainant'sInspection Reports. See: Complainant'sExhibits. No evidence
was presented to support the charges.
Discovery
21. Although Respondents issued subpoenas for all documents related to these matters,
no
field notes were produced at these hearings. See: May 9, 2007, Tr. 27; May 17,2007, Tr. 16,56-7.
Complainants also failed to produce business cards from witnesses at the scene. May 9, 2007, Tr.
50.
Testimony
22. The only evidence
of dumping was initially presented by Mr. Macial. However, he was
impeached by his investigation report, which demonstrated that trucks were receiving loads and
removing material from the site, not dumping loads. May 9, 2007, Tr. 67-73. He later testified that
the E. King trucks were receiving loads and that he told them not to remove the material from the
site. May 9, 2007, Tr. 67-8. Maciallater explained that by loading trucks, Respondent could have
been "trying to get rid
ofthe evidence". May 9, 2007, Tr. 71. (Complete impeachment ofMr. Maciel
is found in Speedy Gonzalez Landscaping Inc.'s Post Hearing Brief at paragraphs 7-9). Mr.
Antonopoulos also testified that an E. King employee opened the gate and that an
E. King truck was
loaded up with debris and waste. May 17,2007,
Tr. 19-20. Mr. Antonopoulos did not see trucks
bringing waste to the property. May 17,2007, Tr. 47. He agreed that in order to bring a charge,
further investigation would be required. May 17,2007, Tr. 93. Mr. Gonzalez told Macial the trucks
were hauling loads out
of the yard and cleaning the property.
23. Mr. Macial testified that he sought to stop the site from being cleaned, by telling the
drivers not to remove material from the site. May
9, 2007, Tr. 68-70. He sought to justify this action
by stating that he would impound the trucks
if they were found to be dumping waste. He then
admitted that he did not impound the
E. King trucks. He testified that he did not know who put
debris on the site. May
9, 2007, Tr. 97. Nor did he know ifMr. Gonzalez caused or allowed waste
to be put on the property. May
9, 2007, Tr. 98. Mr. Atonopolous also had no knowledge or
information that any
of the material on the site was caused or allowed by Jose Gonzalez. May 17,
2007, Tr. 55.
24. Mr. Macial testified that he was not aware whether Mr. Gonzalez caused or allowed open
burning. May
9, 2007, Tr. 121-25. Macial had no information that Mr. Gonzalez caused or allowed
open dumping at the site. May 9, 2007, Tr. 125-26. He was not aware whether Mr. Gonzalez caused
or allowed illegal fly dumping, railroad ties or tires to be on the property. May 9, 2007, Tr. 126-27.
With regard to all questions asked
of Mr. Macial regarding what he knew of Mr. Gonzalez, Macial
was asked the same questions with regard to the LLC, whether it caused or allowed any
of the
allegations claimed. Macial responded that the LLC did not cause or allow the alleged violations.
May
9, 2007, Tr. 119-28.
25. Mr. Antonopoulos believed that the broken bricks on site were not the type
ofbricks used
for landscaping. May 17,2007, Tr. 36-7. At the hearing Mr. Gonzalez explained that he never caused
or allowed open dumping, scavenging, waste storage or treatment, the disposition
of waste in
standing water, open burning or the dumping
of tires. May 17,2007, Tr. 123. He stated that he did
not cause or allow the fly dumped material, railroad ties, or construction debris on the property. May
17,2007, Tr. 108-13. He explained his agreement with
E. King regarding the CTA construction
debris (May 17, 2007, Tr. 113-19), and that he made sure the land was scraped clean. The
Complainant has the burden
of proving the allegations after performing a competent and adequate
investigation. The allegations were not proven. A competent investigation was not performed.
Property was being Cleaned
26. Chris Antonopoulos also stated that the clean stone depicted in photograph 7,
of the
investigation report, was being spread on the property to get rid
of standing water on the land. May
17,2007, Tr. 38, 63. He stated that people are given time to clean up sites where they did not cause
or allow the debris. May 17,2007, Tr. 42. He testified that
if a property owner has waste material
dumped on his land, it is common for investigators to give the owner time to clean up the property.
A person with a large amount
ofwaste would be given more time than a person with less debris. May
17,2007, Tr. 40-2.
27. Mr. Antonopoulos testified that the individuals on site were cleaning up the site, moving
piles and dumping them into E. King trucks which left the site. May 17,2007, Tr. 59-60. He stated
that this was consistent with cleaning the site. May 17, 2007, Tr. 53-4. He also stated that heavy
equipment would sink in the mud
if stones weren'tput down first. May 17, 2007, Tr. 73-May 17,
2007, Tr.
5. Mr. Gonzalez also testified that to access and clean the property, a gravel road consisting
of25-30 semis containing 20 tons of gravel apiece, had to be put in. May 17, 2007, Tr. 103-06. He
spent $30,000.00 in disposal fees alone cleaning the property. May 17,2007, Tr. 123,131-32. Mr.
Gonzalez testified that he was cleaning up the site on March 22 and 24, 2006, when ticketed. May
17,2007,
Tr. 110.
Scavenging
28.
Mr. Antonopoulos testified that he saw one wire (Page 12 of Investigation Report),
where the insulation was stripped to get copper. May 17, 2007, Tr.
12. He agreed however that since
landfills don'taccept wire,
ifthe wire was segregated from a load to take it to a landfill, this would
be legitimate activity. May 17,2007,
Tr. 69-72.
Complainant's Argument
29. Complainant's Post-Hearing Brief maintains that Respondent caused or allowed open
dumping because his control over the site make it responsible for "causing and allowing open
dumping". Complainant cites
IEPA
v.
Shrum,
AC 05-18 (IPCB Mar. 16,2006). That authority held
that an owner allows open dumping
if it does not act to remedy a prior violation. In
Shrum,
the
owner was found to have buried waste, thereby exacerbating the pollution, and failed to take further
action to clear the waste. In contrast, the property in question had a gravel road built to get
to the
waste and waste was in the process
of being cleaned when Respondent was charged.
30. In
IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20, 2004), also cited by Complainant, the
individual did not remove debris over a two year period and new debris appeared on the property
which was not secured. In this instance, Respondent secured the property and rather than causing or
allowing open dumping, was cleaning refuse when ticketed. The Respondent LLC did not allow
waste to remain on his property. Testimony at the hearing revealed that property owners are allowed
time to remove waste. Rather than asserting the clean-up as a defense, the actions demonstrated are
contrary to proof
of a violation.
31. Complainant argues that clean-up efforts are not a defense to a citation and cite
City of
Chicago
v.
City Wide Disposal, Inc.
AC 03-11 (IPCB Sept. 4, 2003). In that case, the material was
dumped by Respondent's employee who did not understand English and respondent argued that a
misunderstanding constituted uncontrollable circumstances. The inspector observed open dumping
occurring. Therefore, the clean-up was not a mitigating factor. The ruling concluded that
uncontrollable circumstances were not present.
32. In the instant case, Complainant did not demonstrate by competent evidence that
Respondent caused or allowed open dumping. Complainant's brief constantly refers to
"Respondent'sopen dumping" when no evidence has been demonstrated. The assertion is contrary
to the marginal and incompetent investigation conducted by the Department
of the Environment
inspectors and all evidence produced at the hearing.
33. All evidence demonstrates that Respondent'sefforts were directed toward securing the
property from fly-dumpers and cleaning the garbage that was placed on the property by others. The
evidence adduced at the hearing further demonstrates that Department
ofthe Environment inspectors
hindered clean-up efforts and failed to even investigate the entities that actually caused and allowed
the dumping.
Legal argument
34. While the Environmental Protection Act does not require proof of knowledge or intent,
it does not impose strict liability on an alleged polluter.
People
v.
A.1. Davinroy Contractors, 249
Ill.App.3d 788, 618 N.E.2d 1282, 1286 (5
th
Dis!. 1993);
Phillips Petroleum v.Illinois Environmental
Protection Agency,
72 Ill.App.3d 217, 390 N.E.2d 620,623 (2"d Dis!. 1979). In that case, the court
found that the record did not indicate sufficient evidence that defendant exercised sufficient control
over the source
of the pollution in such a way to have caused, threatened or allowed the pollution.
35. Similarly, in the instant case, there is no competent evidence that Respondent exercised
sufficient control over the source
of the pollution in such a way to have caused, threatened or
allowed the pollution. In determining whether alleged polluters have violated the Act, courts look
to whether the alleged polluter exercised sufficient control over the source
ofthe pollution.
People
v.
A. 1. Davinroy Contractors,
249 Ill.App.3d 788, 618 N.E.2d 1282, 1286 (5
th
Dis!. 1993);
People
v.
Fiorini,
143ll1.2d 318, 346, 574 N.E.2d 612, 623 (1991).
36. In instances where others caused the pollution without the landowner's knowledge or
consent, courts look to the record to establish
ifthe landowner had taken any precautions to prevent
the actions of others. See:
Perkinson
v.
Pollution Control Board,
187 Ill.App.3d 689, 543 N.E.2d
901 (1989).
In
this instance, the Respondent, an LLC owned by a minority contractor, repeatedly
secured the property, put down a gravel road and was in the process
of cleaning the property for
purposes
of future development when the investigators stopped the removal of debris and charged
Mr. Gonzalez for his efforts.
37. Respondent'sowner maintains that he and his companies were targeted in these matters
after having a confrontation with Complainant's witness, Rafael Maciel. See: Speedy Gonzalez
Landscaping Inc.
'sPost Hearing Brief, AC 2006-039. This is demonstrated by baseless allegations,
the charging
of entities who were not the owners of the property, a biased and incomplete
investigation and investigation report, discovery abuses and the failure to respond to subpoenas at
hearing. See: Motion to Dismiss Actions.
Wherefore, for the above and forgoing reasons, Respondent Jose Gonzalez prays that the
Illinois Pollution Control Board dismiss Complainant'sAdministrative Citation and for such further
relief as it deems just and equitable.
Dated: August 6, 2007
Jeffrey
J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600
