BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
JOSE R. GONZALEZ,
)
)
)
Complainant, )
)
)
)
)
)
)
NOTICE OF FILING
AC 06-040
(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 of the
Illinois Pollution Control Board the attached CITY OF
CHICAGO'S REPLY TO JOSE
R.
GONZALEZ'SPOST-HEARING BRIEF, a copy of which is served upon you.
~.~
raIlal11G
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.
\~
Graham G. McCahan
.
7?f2=-L-
Electronic Filing - Received, Clerk's Office, May 13, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
JOSE R. GONZALEZ,
)
)
)
Complainant, )
)
)
)
)
)
)
AC 06-40
(Administrative Citation)
CITY OF CHICAGO'S REPLY TO JOSE R. GONZALEZ'S
POST-HEARING BRIEF
Complainant, the City of Chicago Department of Environment ("CDOE"), hereby
submits the following as its Reply to Respondent Jose R. Gonzalez'sPost-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)(1), 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.
Both Street in Chicago, Illinois (the "Site") on March 22,2006, and whether Respondent
is liable for those violations. The evidence and testimony at hearing demonstrated that
the above violations existed on the Site on March 22, 2006 and that Respondent
controlled access
to and operations on the Site to such an extent that he should be held
liable for the violations under Illinois law. Not only has Respondent not contradicted this
I
Despite Respondent's statement to the contrary in its Post-Hearing Brief (Resp. Post-Hearing Br. at
~
21),
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.
1
Electronic Filing - Received, Clerk's Office, May 13, 2008
evidence, but Respondent, in his Post-Hearing Brief, also admits to many of the facts
required to establish those violations.
ARGUMENT
A.
CDOE Has Established that There Were Violations of Sections 21(p)(1),
21(p)(2), 21(p)(3), 21(p)(4),
and 21(p)(7)(i) on the Site on March 22,2006.
As shown in CDOE's Post-Hearing Brief, the testimony and evidence at hearing
demonstrated that there were violations
of Sections 21(P)(1), 21 (P)(2), 21 (p)(3), 21(P)(4),
and
21 (P)(7) on the Site on March 22, 2006. Respondent, in his Post-Hearing Brief, has
not contradicted CDOE's evidence and has admitted to some of the conditions on which
those violations are based. With respect to the charge of open dumping resulting in litter
under Section
21(P)(l), for instance, Respondent's counsel admits "[t]hat debris was on
the property is uncontested." Resp. Post-Hearing Br. at -,r 9. With respect to the charge
of waste standing in water pursuant to Section 21 (p)(4), Respondent's counsel admits that
"[w]hen the snow melted, the site was full of mud and water."
Id.
at -,r 12. With respect
to the charge
of deposition of general construction and demolition debris under Section
21 (P)(7), Respondent's counsel admits that Respondent'srenter, E. King, dumped what
he described as "CTA construction debris" on the Site.
Id.
at -,r-,r 9-15.
B.
Respondent Exercised Sufficient Control Over the Property to be Held
Liable
Under Illinois Law.
CDOE acknowledges that Respondent is not the owner of record for the Site, but
Respondent's counsel admits that Respondent "has acquired an interest in property
located at 1601-1759 East 130
th
Street." Resp. Post-Hearing Br. at -,r 1. Even though
Respondent is not the
owner of record, the Board has held that ownership of property is
not a prerequisite to violating Section
21 (p) of the Act.
See IEPA v. Cadwallader,
AC
2
Electronic Filing - Received, Clerk's Office, May 13, 2008
03-13 (IPCB May 20,2004);
[EPA
v.
Pekarsky,
AC 01-37 (IPCB Feb. 7,2002). A
complainant
must show that the alleged open dumper had control over the source or site
ofpollutiono
[d.
As set forth in CDOE's Post-Hearing Brief, Respondent had extensive
control
over the movement of trucks, people and materials onto and off of the Site.
Compi. Post-Hearing
Bro at 4-5. Despite Respondent's statement that "Mr. Gonzalez was
not on site
when the investigators appeared" (Respo Post-Hearing Br. at,-r 3), CDOE
presented testimony and evidence that Respondent was on the Site on March 22, 2006
and attempted to exercise control
over the Site by asking the CDOE inspector to leave the
property.
O'Donnell Tro at 25; Compi. Ex. A at 6.
Respondent had control over the Site such that he should be found liable for the
violations observed there on March 22, 2006. While attempting to argue that Respondent
lacked sufficient control over the Site to
be liable under the Act, Respondent'scounsel
admits that Respondent "repeatedly secured the property,
put down a gravel road and was
in the process
of cleaning the property for purposes of future development" at the time of
CDOE's March 22, 2006 inspection. Resp. Post-Hearing Br. at,-r 34. Respondent's
counsel also admits that "Mr. Gonzalez offered to rent the land to E. King" (Resp. Post-
Hearing Br.
at,-r 12) - as established at hearing, E. King dumped large quantities of
general construction and demolition debris on the Site. As these admissions and the other
evidence cited
in CDOE's Post-Hearing Brief demonstrate, Respondent clearly assumed
the responsibility for securing, maintaining, developing, and renting the Site - all
of
which demonstrate that Respondent had control over the source or site of pollution and
can be found liable for violating the Act.
3
Electronic Filing - Received, Clerk's Office, May 13, 2008
C.
Waste Remained On the Site For Fourteen Months While it was Under
Respondent'sControl.
In his Post-Hearing Brief, Respondent's counsel states that "Respondent secured
the property and rather than causing
or allowing open dumping, was cleaning refuse
when ticketed. Mr. Gonzalez did not allow waste to remain on his property." Resp. Post-
Hearing Br. at
~
30. Respondent'scounsel also distinguishes between Respondent's
alleged clean up activities and the respondent in
IEPA v. Cadwallader,
who "did not
remove debris over a two year period" and was found liable for violations
of the Act.
!d.
Respondent's counsel admits, however, that "[w]hen he [Respondent] acquired the
property is [sic] was loaded with
junk" and that there were "tires, signs and materiaL.on
the property when purchased."
Id.
at
~~
1,9. Respondent admitted at hearing that some
of the waste observed on March 22, 2006 had been on the Site since he acquired his
interest in it. Beddard Tr. at 111-12. In addition, Respondent'scounsel admits that there
was "trash that was constantly being fly-dumped"
on the Site. Resp. Post-Hearing Br. at
~
9. As Respondent stated at hearing, he did not begin any clean up activities until the
spring
of 2006. Beddard Tr. at 103. As demonstrated at hearing, Respondent acquired
his interest in the Site in January 2005 - a full fourteen months prior to
CDGE's
March
2006 inspection. Beddard Tr. at 134-35; CompI. Ex. B. Even
if clean up activities were
a defense to violations
of the Act
2
,
Respondent has failed to show why leaving waste on a
site for two years, as in
Cadwallader,
is legally distinguishable from allowing waste to
remain on this Site for fourteen months. Respondent has admitted that there was waste
both on the Site and added to the Site during the period that the Site was under his control
2 As stated in CDGE's Post-Hearing Brief, the Board has repeatedly held that clean up efforts are not a
defense to violations
of 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).
4
Electronic Filing - Received, Clerk's Office, May 13, 2008
from January 2005 to March 2006. This is clearly sufficient to find Respondent liable for
causing
or allowing open dumping and the resulting violations of Sections 21 (p)(1),
21 (p)(2), 21(p)(3), 21 (P)(4), and 21 (p)(7)(i) of the Act.
CONCLUSION
Respondent is liable for violating Sections 21(p)(1), 21 (P)(2), 21(P)(3), 21 (P)(4),
and 21(P)(7)(i)
of the Act due to Respondent'scontrol over the Site where these
violations were observed on March 22, 2006. 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~ty ofChicago
':;j> I
BY:/,~
{~
Tm.1l!fi6L
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
5
Electronic Filing - Received, Clerk's Office, May 13, 2008