BEFORE THE ILLINOIS POLLUTION CONTROL SOAVE E vED
CLERK'S
OFFICE
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
?
JUN 0 2 2008
Complainant,
Site Code:0316485103?
STATE OF
ILLINOIS
3
ollution Control Board
AC: 2006-039
v.
AC: 2006-040
AC: 2006-041
SPEEDY GONZALEZ LANDSCAPING,
AC: 2007-025
INC., et al.
Respondents.
NOTICE OF FILING
TO: Mr. Bradley P. Halloran
?
Ms. Jennifer A. Burke, Senior Counsel
Illinois Pollution Control Board
?
City of Chicago, Dept. of Environment
100 West Randolph Street, Suite 11-500
?
30 North La Salle Street, 9' Floor
Chicago, Illinois 60601
?
Chicago, Illinois 60602
PLEASE TAKE NOTICE that we have this day filed with the Clerk of the Illinois Pollution
Control Board, Respondent's Motion
for Le e to File Sur-Replies.
Dated at Chicago, Illinois, this 2' day of June?
8
J. LEVINE, P.C.
At rney or Respondents
?
Spee.
?
onzalez Landscaping, Inc.,
Jose Gonzalez, and
1601-1759 East 130' 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 mentio?
documents to the person to whom said Notice is
directed by hand delivery, this 2"d
day of Ju?
08
J. LEVINE, P.C.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
v.
SPEEDY GONZALEZ LANDSCAPING,
INC., et al.
Site Code:0316485103
AC: 2006-039
AC: 2006-040
AC: 2006-041
AC: 2007-025
Pon
:TACTFEERC:ESI
O
:
Fts:
D
u
jti!
C0o2nt2r
:108
80aisrd
Respondents.
MOTION FOR LEAVE TO FILE SUR-REPLIES
Now come Respondents, Speedy Gonzalez Landscaping, Inc., Jose Gonzalez, and 1601-1759
East 130th
Street, LLC, by and through their attorney, Jeffrey J. Levine, P.C., and for their Motion
for Leave to File Sur-Replies, state and assert as follows:
1.
Pursuant to the Hearing Officer's Order dated April 17, 2008, on or about May 13, 2008,
Complainant filed replies in the above captioned matters. These Reply Briefs have raised matters
which require that Respondents be allowed to file Sur-Replies.
2. A glaring example occurs in
City of Chicago, Department of Environment v. Speedy
Gonzalez Landscaping, Inc.,
Case No. AC: 2006-039. In its May 13, 2008, Reply Brief, the City now
contends that the water tanker, present on the property, is waste. Previously, the City had argued that
the tanker demonstrated the Respondent's control over the property.
3.
The argument made by the City is in direct contrast to the city's main witness, investigator
Rafael Maciel. That witness specifically testified under oath at his deposition that the tanker truck
on the site was not a violation. See :
Macial's 12/06/06 Deposition at p. 148, attached hereto as
Exhibit A.
4.
The City however, spends half of its Reply Brief now contending that the same tanker
should be classified as waste in order to hold the Respondent liable. In essence this is a fatal variance
from the initial charges.
5.
Under any minimal due process requirements, a defendant is allowed to know the claims
made against him so that he may defend against said claim.
6.
The City raises additional issues in its Reply Briefs that must be addressed by way of Sur-
Replies such as the following:
In City of Chicago Department of Environment v. Jose R. Gonzalez, Case No. AC: 2006-
040, the City argues that it must show that "an alleged open dumper had control over the
source or site of pollution. The City now argues that Mr. Gonzalez was an "open dumper".
In City of Chicago, Department of Environment v. 1601-1759 East 130
th Street, LLC, Case
No. AC: 2006-041, the City argues that Respondent can be held liable for "causing or
allowing" open dumping even if he did not participate in the dumping.
In City of Chicago Department of Environment v. 1601-1759 East 130
th Street, LLC, Case
No. AC: 2007-025, the City argues that Respondent can be held liable for its "passive
conduct" when the evidence indicates the owner's conduct was the opposite of "passive".
7.
Respondents seek leave to file Sur-Replies in the respective cases to correct the recent
assertions made by the city regarding the tanker being the basis of a violation and to distinguish the
cases asserted it its Reply Briefs
fully Submitted,
. Levine, P.C.
y for Respondents
Speedy Gonzalez Landscaping, Inc.,
Jose Gonzalez, and
1601-1759 East 130 th Street, LLC.
Wherefore, for the above and forgoing reasons, Respondents Speedy Gonzalez Landscaping,
Inc., Jose Gonzalez, and 1601-1759 East 130th
Street, LLC, pray that they be allowed to file Sur-
Replies and for such further relief as is just and equitable.
Dated: June 2, 2008
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,
vs.
SPEEDY GONZALEZ LANDSCAPING.
INC.,
Respondent.
AC 06.39
(CDOE No. 06-02--AC)
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
AC 06-40
(CDOE No. 06-03--AC)
JOSE R. GONZALEZ,
Respondent.
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
AC 06-41
(CDOE No. 013-01--AC)
1601-1759 EAST 130th STREET,
L.L.C.,
Respondent.
The deposition of RAFAEL MACIEL, taken before
Sharon Valli, Certified Shorthand Reporter and Notary
Public, taken pursuant to the rules governing the
Illinois Pollution Control Board pertaining to the taking
of depositions for the purpose of discovery at 20 North
Clerk Street, Suite BOO, Chicago, Illinois, commencing at
2:14 p.m. on the 6th of December. A.D., 2008.
ORIGINAL
v^rvol I
iuim ur KAI-ALL
MACIEL
15
18
17
18
19
20
21
22
23
24
3
INDEX
2
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WITNESS
?
CAGE
3?
RAFAEL MACIEL
4
?
Examination by Mr. Levine
? ?
4
5
Exhibit A??
32
Exhibit B
??
24
Exhibit C??
88
Exhibit 0??
142
agreement of counsel.)
8
7?
EXHIBITS
9
10
12
13?
(Exhibits retained by Mr. Levine by
14
2
1?
APPEARANCES:
2?CITY OF CHICAGO, DEPARTMENT OF LAW
MS. JENNIFER BURKE
3?
MR. GRAHAM G. NoGANAN
30 North LaSalle Street
4?
Room 900
Chicago, Illinois 60802
5?
Phone: (312) 742-3990; (312) 744-1438
On behalf of the Complainant:
7?JEFFREY
J.
LEVINE, P.C.
MR. JEFFREY J. LEVINE
8?20 North Clerk Street
Suite 800
9?Chicago, Illinois 80602
Phone: (312) 372-4600
10
On behalf of the Respondent.
11
12
13
14
15
18
17
18
19
20
21
22
23
24
4
1
?
MR. LEVINE: Let the record reflect that this is the
2 discovery deposition of -- Could you please state your
3 name?
4
?THE
WITNESS: Rafael Maciel.
5
?MR.
LEVINE: Maciel?
6
?THE
WITNESS: Yes.
7
?MR.
LEVINE: (Continuing.) -- Maciel taken pursuant
8 to a notice out -- because
I will send a notice out --
9 pursuant to a notice that will be sent out at some point
10 in three different cases. And the cases are: City of
11
Chicago Department of Environment vs. Jose Gonzalez--
12
?
Which number do you go by, the top one?
13
?
MS. BURKE: Mm-hmm.
14
?
MR. LEVINE: (Continuing.) --AC 06-40; City of
15 Chicago Department of Environment vs. Speedy Gonzalez
16
Landscaping, Incorporated, Case No. AC 06-39; and City of
17
Chicago Department of Environment vs. 1601-1759 East
18
130th Street, L.L.C., Case No. AC 06-41.
19
?
Will you please swear the witness?
20
?
(Witness sworn.)
21 WHEREUPON:
22
?
RAFAEL MACIEL,
23 called as a witness herein, having been first duly sworn,
24 was examined and testified as follows:
JENSEN REPORTING (312) 236-6936
Sheet 1 of 39
2
3
4
5
6
7
8
9
10
11
12
13
1
15
16
?
A.
To my knowledttaaot„,
17?
Q. Now, there's a dump truck, a tanker truck, and
18
a flatbed parked and labeled on-site. Is that a
19 violation?
20
A. Is that a violation?
21
Q.
Yeah.
22
A. No.
23
Q.
No. Okay. That's just parked trucks?
24
A. Yes.
148
Q. Okay. The compost pile, do you know whether --
do you have any information whether any defendant caused
or allowed the placement of that compost pile on the
yard?
A. To my knowledge, no.
Q. With regard to the timber with possible
arsenic -- not arsenic. Is it creosote?
DEPOSITION OF RAFAEL MACIEL
145
handwriting on it. Is that part of your --
2?
MS. BURKE: I think it's on there.
3?
THE WITNESS: It's on there.
4?
MR. LEVINE: Is it?
5?
MS. BURKE: Exhibit B.
6?
THE WITNESS: Right.
7 BY MR. LEVINE:
8?
Q. Oh, I'm
sorry. Yeah. Directing your attention
9 to Exhibit B, page 2, marked as 7 at the bottom, is that
10 your signature on the bottom?
11?
A.?
It is, correct.
12?
Q. And did you complete the report?
13?
A. The report was completed by -- with myself and
14 Christopher Antonopoulos.
15?
Q. And was the investigation ever completed?
16?
A. The investigation was completed? No.
17
?
Q. Okay. What needed to be done with the
18
investigation as far as you know?
19
?
A. Well, we had to find out exactly where the
20 material -- who was going to dispose of the material, how
21 it was going to be disposed of, who were the responsible
22
parties for the material being there. I mean, there was
23
so many different angles before we could finish off the
24
investigation, subsequently, close it out.
146
Q. Was that completed at some.
time?
2
?
A. To my knowledge, no. I have no idea.
3?
Q. Who would have been responsible for completing
the investigation?
A. My supervisor, Stanley Kaehler. You have John
Kryl, who is director of inspection.
Q. How about Chris?
A. Well, Chris was justian investigator just like
8
, me.
So
9
Q. With regard to the site conditions, I'm
going
to go through a couple of things. The stone piles, that
was the clean stone?
A. I have no idea.
Q. Those were the piles listed in --
A. Yeah. I would say yes, it is.
Q. Okay. And do you know whether those were
lution or waste?
A.
I
wouldn't say that they were.
Q.
With regard to the debris piles, the debris
I'm
assuming, are the small piles all around the
s of the berm, correct?
A. Correct.
Q. And you stated you had no information whether
efendant caused or allowed those piles to be placed
REPORTING (312) 236-6936
147
I
there, correct?
2
?
A. Correct.
3
?
Q. With regard to the suspected CTA material which
4
you later learned to be the CTA material ...
5
?
A. Yeah. We still haven't -- To my knowledge, I
6
have no idea if it was still CTA material.
7
?
Q. Well, you previously testified that it was from
8 the CTA, correct?
9
?
MS. BURKE: No, he did not. That is
10 mischaracterizing his testimony. I object.
11
BY MR. LEVINE:
12?
Q. Did you subsequently learn from talking to
13
people and checking manifests that this material came
14 from the CTA Brown Line?
15?
A. Like I said, during the process of my
16 investigation, there was so many clashing stories. The
17 people, as far as the drivers and operators there, they
18 told me the material was coming from a CTA project.
19 Chuck Webber had stated at first that it was from a CTA
20 project. And then you had Paschen who rebutted that and
21 said that material was not from the CTA project.
22?
Q.
Does anyone know at the City of Chicago where
23 the material is from?
24?
A. To my knowledge, I have no idea.
Q hetes*
'1
?
en