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 07-025
(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'SREPLY TO 1601-
1759 EAST
BOTH STREET, LLC'SPOST-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.
~if~
Graham G. McCahan
Electronic Filing - Received, Clerk's Office, May 13, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1601-1759 EAST l30
TH
STREET, LLC,
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Respondent.
v.
)
)
)
Complainant, )
)
)
)
)
)
)
AC 07-25
(Administrative Citation)
CITY OF CHICAGO'SREPLY 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
Both
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) and 21 (p)(7)(i) of the Illinois Environmental
Protection Act (the "Act") (415 ILCS 5/21) at 1601
E.
l30
th
Street in Chicago, Illinois
(the "Site") on October 3, 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 October 3,2006. 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 the facts required
to
establish those violations.
1
Electronic Filing - Received, Clerk's Office, May 13, 2008
ARGUMENT
A.
CDOE Has Established that There Were Violations of Sections 21(p)(l) and
21(p)(7)(i) on the Site on October 3, 2006.
As shown in CDOE'sPost-Hearing Brief, the testimony and evidence at hearing
demonstrated that there were violations
of Sections 21(P)(1) and 21 (p)(7)(i) on the Site
on October 3, 2006. Respondent, in its Post-Hearing Brief, has not contradicted CDOE's
evidence and has admitted to the 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'scounsel made the following admissions: "when [Respondent]
acquired the property is [sic] was loaded with
junk;" "Mr. Gonzales [sic] further stated
that the debris pictured in complainant'sreport is the same debris from the past violations
on March
22,2006;" and, "Mr. Gonzalez'sefforts were directed toward...cleaning the
garbage that was placed on the property by others." Resp. Post-Hearing Br. at
~~
1,4, 7.
With respect to the charge of deposition of general construction and demolition debris
under Section
21 (p)(7), Respondent'scounsel incorporated the arguments made in the
Post-Hearing Briefs in cases 2006-39, 2006-40, and 2006-41.
Id.
at
~
5. In the Post-
Hearing Briefs for cases 2006-40 and 2006-41, 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. Resp. Post-Hearing Br. for case 2006-40 at
~~
9-15;
Resp. Post-Hearing Br. for case 2006-41 at
~~
9-15.
B.
Respondent, As Owner of the Site, Is Liable for the Open Dumping and
Resulting Violations Observed on the Site on October 3, 2006.
It
is uncontested that Respondent owned the Site on October 3, 2006. CompI.
Post-Hearing Br.
at 1;
see also
Resp. Post-Hearing Br. at
~
1. The Board has repeatedly
2
Electronic Filing - Received, Clerk's Office, May 13, 2008
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);
IEPA v. Carrico,
AC 04-27 (IPCB Sep. 2, 2004);
IEPA v. Rawe,
AC 92-5 (IPCB Oct. 16, 1992). Respondent claims that fly-dumpers 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
~
1, 7. 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 Ill.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) ofthe 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 October 3,2006
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 While it was Under Respondent's Ownership.
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 [owner of Respondent] did not allow waste to remain on
his property." Resp. Post-Hearing Br. at
~
6. 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."
Id.
at
~
1.
In
the Post-
3
Electronic Filing - Received, Clerk's Office, May 13, 2008
Hearing Briefs for cases 2006-40 and 2006-41 (which were incorporated into
Respondent'sPost-Hearing
Brief in the instant case), Respondent's counsel also admits
that there was "trash that was constantly being fly-dumped" on the Site. Resp. Post-
Hearing Br. for case 2006-40 at
~
9; Resp. Post-Hearing Br. for case 2006-41 at
~
9. In
its Post-Hearing Brief, Respondent acknowledged that "the debris pictured in
complainant'sreport is the same debris from the past violations on March
22,2006."
Resp. Post-Hearing Br. at
~
4. Even if clean up activities were a defense to violations of
the Act!, 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 at
least seven months. Respondent has admitted that there was waste both on the Site and
added to the Site during the period that Respondent owned the Site. This is clearly
sufficient to find Respondent liable for causing
or allowing open dumping and the
resulting violations
of Sections 2l(p)(1), 2l(P)(2), 2l(P)(3), 21 (P)(4), and 21 (P)(7)(i) of
the Act.
CONCLUSION
Respondent is liable for violating Sections 2l(p)(1) and 2 1(p)(7)(i)
of the Act due
to Respondent's ownership
of the Site where these violations were observed on October
3,2006. Therefore,
eDOE respectfully requests that the Board enter a final order finding
that Respondent violated these sections and imposing the statutory penalty
of $3000
($1500 for each violation).
I
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 (lPCB 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 Chicago
By:
f:I{!d!f~~
Je.. ifer . 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
5
Electronic Filing - Received, Clerk's Office, May 13, 2008
