BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
SPEEDY GONZALEZ
LANDSCAPING, INC.,
)
)
)
Complainant, )
)
)
)
)
)
)
)
NOTICE OF FILING
AC 06-039
(Administrative Citation)
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 May 13, 2008 Complainant filed with the Clerk ofthe
Illinois Pollution Control Board the attached CITY OF CHICAGO'SREPLY TO
SPEEDY GONZALEZ LANDSCAPING, INC. 'S POST-HEARING BRIEF, a copy of .
which is served upon you.
~Pl~
Graham 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 May 13,2008, he caused copies of this
notice and the documents referenced therein to be served on the persons listed above by
U.S. Mail, first class postage prepaid.
~L
rahamG.
McCahan
ptU
Electronic Filing - Received, Clerk's Office, May 13, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT OF
)
ENVIRONMENT,
)
)
Complainant,
)
)
v.
)
)
SPEEDY GONZALEZ LANDSCAPING, INC.,
)
)
Respondent.
)
)
AC 06-39
(Administrative.Citation)
CITY OF CHICAGO'S REPLY TO SPEEDY GONZALEZ LANDSCAPING,
INC.'S POST-HEARING BRIEF
Complainant, the City of Chicago Department of Environment ("CDOE"), hereby
submits the following as its Reply to Respondent Speedy Gonzalez Landscaping, Inc.'s
Post-Hearing Brief. In support thereof,
CDOE states as follows:
INTRODUCTION
The narrow issues before this Board are whether CDOE has demonstrated that
there existed violations
of sections 21(p)(I), 21 (p)(2), 21(P)(3), 21(p)(4), and 21(p)(7)(i)
of the Illinois Environmental Protection Act
l
(the "Act") (415 ILCS 5/21) at 1601 E.
130
th
Street in Chicago, Illinois (the "Site") on March 22, 2006, and whether Respondent
is liable for those violations. The evidence and testimony presented at hearing shows that
Respondent was the source
of waste and litter on the Site on March 22, 2006 and that
Respondent had sufficient access and control over the Site to be held liable for the above
violations under Illinois law.
I
Despite Respondent's repeated statements to the contrary in its Post-Hearing Brief (Resp. Post-Hearing
Br. at
~~
2, 5, and 16), eDOE has not alleged, in its citation or at hearing, that Respondent was involved in
salt unloading operations, asbestos-related violations, improper site security, waste next to residential
homes, or oil flowing into the sewer.
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Electronic Filing - Received, Clerk's Office, May 13, 2008
ARGUMENT
A.
Respondent is Liable for Violating Section 21(p)(l) of the Act as the Source
of Waste and Litter on the Site on March 22,2006.
Respondent is liable for causing or allowing open dumping that resulted in litter
under Section 21(P)(l)
of the Act because Respondent is the source or generator ofwaste
and litter observed on the Site on March 22, 2006 and the Site was not a properly
permitted sanitary landfill.
In
fact, Respondent admitted to formerly owning one
significant piece
of waste and litter that was on the Site on March 22, 2006. At hearing,
Respondent'switness, Mr. Gonzalez, stated that Respondent was a "landscape company,"
(Tr. at 171.) and admitted that the "old tanker" on the Site "used to belong to the
landscaping company." Tr. at 201. Mr. Gonzalez then admitted that the tanker "didn't
pass the DOT inspection, so we basically have to cut it up and throw it away."
Id.
In its
Post-Hearing Brief, Respondent argues that the tanker on the Site was being "stored
pending a decision" and that it "could be fixed." Resp. Post-Hearing Br. at
~
4.
Respondent also points to Mr. Gonzalez'stestimony that the tanker would require an
eight thousand dollar investment to pass DOT inspection.
Id.
Respondent's counsel
neglected to include Mr. Gonzalez's entire statement regarding this eight thousand dollar
investment, which was "I have to spend, like, eight grand to fix it,
and it's not even worth
it."
Tr. at 201 (emphasis added). More importantly, even if Respondent truly intended to
re-use the tanker at some point in the future, this Board has repeatedly held that
"respondents' claims
of intended future uses are not determinative of whether the
materials are waste or litter."
See IEPA v. Gruen,
AC 06-49 (IPCB Jan. 24, 2008);
IEPA
v. Cadwallader,
AC 03-13 (IPCB May 20,2004);
County ofSangamon v. Daily,
AC 01-
16 (IPCB Jan. 10,2002).
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Electronic Filing - Received, Clerk's Office, May 13, 2008
While finding that the respondent in the
Sangamon
v.
Daily
case had violated
Section 21(p)(I)
of the Act, this Board stated that "[w]hile [respondent] has expressed an
intention to use every single discarded item on his property,
at the time ofthe two
inspections involved herein, numerous items were not
in use, were not useable in their
current condition,
and were not stored in such a way as to protect any future use."
Sangamon
v.
Daily,
AC 01-16 (emphasis added). As Respondents' admissions above
clearly demonstrate, the tanker was neither "in use" nor "useable in its current condition"
on March 22,2006 and it would have required a large investment (that Respondent
evidently had no intention in making)
to return it to use. Furthermore, as shown in
CDOE'sPost-Hearing Brief, the tanker qualifies as "waste" under Section 21(a)
of the
Act and "litter" under Section
21 (p)(1) ofthe Act such that Respondent, as the former
owner
ofthe tanker, should be held liable for violating Section 21(P)(1) ofthe Act.
CompI. Post-Hearing Br. at 4-5.
In addition
to the old tanker, the evidence and testimony at hearing demonstrate
that Respondent was the likely source or generator
of other waste and litter on the Site on
March 22, 2006. Specifically, there was compost material, wood, cinder blocks, fencing
material, and mesh netting, which are all materials that are commonly used in the
landscaping industry.
See
CompI. Ex. A at 6-11; Tr. at 19,25-28, and 109-10.
Moreover, Mr. Gonzalez's testified at hearing that Respondent stored a flatbed on the
Site that was used in Respondent's landscaping projects. Tr. at 201. Although the
flatbed and some
of the other landscaping materials (e.g., the clean stones) most likely do
not qualify
as "waste" under the Act, Respondent's use of the Site to store non-waste
materials demonstrates the degree to which Respondent had access
to and control over
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Electronic Filing - Received, Clerk's Office, May 13, 2008
the Site - Respondent would require access to and control over the Site to retrieve these
materials for use on off-site landscaping projects. The fact that Respondent is a
landscaping company with access to and control over the Site supports a conclusion that
the landscaping materials on the Site that do qualify
as waste and litter were discarded
there
by Respondent. Therefore, Respondent should be found liable for violating Section
21(P)(1) for being a source
ofwaste and litter observed on the Site on March 22,2006.
B.
Respondent is Liable for Violating Sections 21(p)(2), 21(p)(3),
21 (p)(4),
and
21(p)(7)(i)
of the
Act Due to Respondent's Capability to Control the Site of
Pollution.
As stated in CDOE'sPost-Hearing Brief, Respondent is liable for the violations
observed on the Site on March 22, 2006 because Respondent had the "capability to
control the
...site ofpollution."
See IEPA
v.
Cadwallader,
AC 03-13 (IPCB May 20,
2004). Therefore, in addition to the tanker, landscape waste, and other litter directly
attributable to the Respondent
as shown above, the Respondent's capability to control the
Site makes the Respondent also liable for the other open dumping violations observed on
the Site on March 22,2006: scavenging, open burning, waste standing in water, and the
deposition
of general construction or demolition debris.
In Respondent'sPost-Hearing Brief, Respondent does not deny the existence
of
these specific violations on the Site on March 22, 2006, but claims that CDOE did not
provide any evidence linking Respondent
to the violations. As this Board has held,
however, CDOE need not show that Respondent directly committed the alleged
violations, but "must show that the alleged polluter has the capability
of control over the
pollution or that the alleged polluter was
in control of the premises where the pollution
occurred."
Jd.
Furthermore, Respondent's dumping of litter on the Site in violation of
4
Electronic Filing - Received, Clerk's Office, May 13, 2008
Section 21 (p)( 1) could have encouraged others to engage in open dumping activities on
the Site in violation ofthe Act. In
County ofJackson
v.
Donald Taylor,
AC 89-258
(IPCB Jan. 10, 1991), the respondent admitted to
dumping some materials on the subject
property,
but denied committing the majority of the dumping or the open burning that
was observed there.
Id.
In finding violations of Section 21(q) (now Section 21 (P)), the
Board found that the fact that respondent 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 Respondent also claims that the trucks observed on the Site on March 22,
2006 were cleaning the property, but the Board has repeatedly held that clean up efforts
are
not a defense under the Act.
See City ofChicago
v.
City Wide Disposal, Inc.,
AC 03-
11 (IPCB Sept. 4,2003);
County ofJackson
v.
Easton,
AC 96-58 (IPCB Dec. 19, 1996).
As shown in CDOE's Post-Hearing Brief, Respondent admitted at hearing that there was
waste on the Site on March 22, 2006 from off-site sources (whether from fly-dumpers, E.
King,
or Respondent's landscaping operations). CompI. Post-Hearing BL at 2-3. Under
Illinois law, the presence of off-site waste at a site lacking the proper permits is sufficient
to find that
open dumping and resulting violations have occurred.
Id.
Moreover, as this
Board stated in
County ofJackson
v.
Easton,
"clean-up of the site is not a mitigating
factor
under the administrative citation program." Due to Respondent's capability to
control the site where the violations were observed
on March 22, 2006, Respondent
should be found liable for violating Sections 21(p)(2), 21(p)(3), 21(p)(4), and 21(p)(7)(i)
of the Act.
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Electronic Filing - Received, Clerk's Office, May 13, 2008
CONCLUSION
Respondent is liable for violating Section 21(P)(1) of the Act because Respondent
contributed to the waste and litter observed
on the Site on March 22,2006. In addition,
Respondent is liable for violating Sections 21(P)(2), 21(P)(3),
21 (p)(4), and 21 (p)(7)(i) of
the Act due to Respondent's capability to control the Site. Therefore, 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
of the City of Chicago
BY:~~~
J ifer A. Burke
Dated:
May 13, 2008
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
6
Electronic Filing - Received, Clerk's Office, May 13, 2008