BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1601-1759 EAST BOTH STREET, LLC,
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
)
)
)
Complainant, )
)
)
)
)
)
)
NOTICE OF FILING
AC 06-041
(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'S REPLY TO 1601-
1759 EAST BOTH STREET, LLC'S POST-HEARING BRIEF, a copy of which is served
upon you.
~
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.
Electronic Filing - Received, Clerk's Office, May 13, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1601-1759 EAST 130
TH
STREET, LLC,
CITY OF
CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
)
)
)
Complainant, )
)
)
)
)
)
)
AC 06-41
(Administrative Citation)
CITY OF CHICAGO'S REPLY TO 1601-1759 EAST
BOTH
STREET, LLC'S
POST-HEARING BRIEF
Complainant, the City of Chicago Department of Environment ("CDOE"), hereby
submits the following as its Reply to Respondent 1601-1759 East 130
th
Street, LLC'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)(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) 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 at hearing demonstrated that
the above violations existed on the Site on March 22, 2006. Respondent, as owner
of the
Site, should
be held liable for those violations under Illinois law. Not only has
Respondent not contradicted this evidence, but Respondent, in its Post-Hearing Brief,
also admits to
many of the facts required to establish those violations.
1 Despite Respondent's statement to the contrary in its Post-Hearing Brief (Resp. Post-Hearing Br. at
~
20),
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
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 CDGE'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 has not contradicted CDGE's
evidence and has admitted to some ofthe conditions on which those violations are based.
With respect to the charge of open dumping resulting in litter under Section 21 (P)(1), for
instance,
Respondent's counsel admits "[t]hat debris was on the property is uncontested."
Resp. Post-Hearing Br. at
~
9. With respect to the charge of deposition of general
construction and demolition debris
under Section 21(P)(7), Respondent's counsel admits
that E.
King [Construction] was renting the Site and that E. King dumped what he
described as
"CTA construction debris" on the Site.
Id.
at
~~
9-15. With respect to the
charge
of scavenging under Section 21 (P)(2), rather than contradicting CDGE's evidence
that there
was a wire on the Site that appeared to be getting stripped for its copper
content,
Respondent's counsel claims that such activity would be legitimate if a landfill
would not accept wire.
Id.
at
~
28.
B.
Respondent, As Owner of the Site, Is Liable for the Open Dumping and
Resulting Violations Observed on the Site on March 22, 2006.
It
is uncontested that Respondent owned the Site on March 22, 2006. Compi.
Post-Hearing Br. at
1,4;
see also
Resp. Post-Hearing Br. at
~
1. The Board has
repeatedly held that a landowner can be held liable for "causing or allowing" open
dumping even if the landowner did not actively participate in the dumping.
See IEPA v.
Shrum,
AC 05-18 (IPCB Mar. 16,
2006);lEPA v. Carrico,
AC 04-27 (IPCB Sep. 2,
2
Electronic Filing - Received, Clerk's Office, May 13, 2008
2004); IEPA
v.
Rawe,
AC 92-5 (IPCB Oct. 16, 1992). Respondent claims that fly-
dumpers and E. King dumped waste at the Site without Respondent'spermission and that
there was waste on the Site when Respondent purchased it. Resp. Post-Hearing Br. at
~
9. However, a person can cause or allow open dumping in violation of the 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 Il1.2d 318,574 N.E.2d 612 (1991). In
addition, "passive conduct" on the part
of a landowner can amount to "acquiescence
sufficient to find a violation
of Section 21(a) of the Act."
IEPA
v.
Shrum,
AC 05-18
(IPCB Mar. 16, 2006). Therefore, Respondent, as owner
of the Site, is liable for the
violations observed on March
22,2006 because Respondent failed to prevent others from
dumping waste on the Site and Respondent let waste remain
on the property.
c.
Waste Remained On the Site for Fourteen Months While it was Under
Respondent's Ownership.
In
his Post-Hearing Brief, Respondent'scounsel states that "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."
Resp. Post-Hearing Br. at
~
30. Respondent's counsel 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 [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. In addition, Respondent'scounsel admits
that there was "trash that was constantly being fly-dumped" on the Site. Resp. Post-
Hearing Br.
at'19. As demonstrated at hearing, Respondent acquired the Site in January
3
Electronic Filing - Received, Clerk's Office, May 13, 2008
2005 - a full fourteen months prior to CDOE'sMarch 2006 inspection. CompI. Ex. B;
Tr. at 67-68. 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 thatthere was waste both on the Site and
added to the Site during the period that Respondent owned the Site 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) ofthe 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) ofthe Act due to Respondent's ownership of 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).
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 (lPCB Sept. 4,
2003); County ofJackson v. Easton,
AC 96-58 (IPCB Dec. 19, 1996).
4
Electronic Filing - Received, Clerk's Office, May 13, 2008
Respectfully submitted,
CITY OF CHICAGO
DEPARTMENT OF ENVIRONMENT
Mara
S. Georges, Corporation Counsel
of the City of Chica 0
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
