JE
Atto
1601-1
J. LEVINE, P.C.
r Respondent
EAST 130
th
STREET, LLC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
v.
1601-1759 EAST 130
th
STREET, LLC,
Respondent.
RECEIVED
CLERK'S
OFFICE
JUN 3 0
2008
STATE OF
ILLINOIS
P
ollution
Control
Board
Site Code:0316485103
AC: 2006-041
(CDOE No. 06-01-AC)
NOTICE OF FILING
TO: Mr. Bradley P. Halloran
Ms. Jennifer A. Burke
Illinois Pollution Control Board
City of Chicago, Dept. of Law
100 West Randolph Street, Suite 11-500
30
North La Salle Street, Suite 900
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
Sur-Reply Brief.
Dated at Chicago, Illinois, this 30
th day of Jun 2008.
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 mentioned uments to the person to whom said Notice is
directed by hand delivery, this 30
th
day of June,
JEFF
J. LEVINE, P.C.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT
OF ENVIRONMENT,
Complainant,
v.
1601-1759 EAST 130
th
STREET, LLC,
Respondent.
RECEIVED
CLERK'S
OFFICE
JUN 3 0 2008
STATE OF ILLINOIS
Pollution Control
Board
Site Code:0316485103
AC: 2006- 41
(CDOE No. 06-0 I -AC)
1601-1759 EAST 130th
STREET, LLC'S SUR-REPLY
Now comes the Respondent, 1601-1759 EAST 130 th STREET, LLC, by and through its
counsel Jeffrey J. Levine, P.C., and for its Sur-Reply, states and asserts as follows:
1. In their May 13, 2008, Reply Brief, the City contends that the evidence and testimony
demonstrated violations. Respondent contends that contrary to the City's position, the evidence and
testimony demonstrated 1) an ineffective investigation, 2) selective prosecution, 3) false testimony,
4) an utter contempt for the process which included a failure to provide discovery and providing
selective information, 5) complaints against entities with no basis, 6) false allegations, and 7)
evidence that the investigator was seeking a bribe.
2. The central question was whether Respondent, the owner of the property in question, had
caused or allowed the waste and whether the alleged violation resulted from uncontrollable
circumstances. The City has the burden of proof in these hearings. 415 ILCS 5/31.1(d)(2)(2004); 35
Ill. Admn. Code 108.400.
3. The City argues that the owner Respondent is liable as he failed to prevent others from
dumping waste and let waste remain on the property. See: May 13, 2008, Reply Brief, p. 3. As
authority, the City offers
IEPA v. Cadwallader,
AC 03-13 ([PCB May 20, 2004).
4.
The evidence presented conclusively demonstrates that Respondent neither caused nor
allowed the waste. The hearing record is replete with testimony that Respondent repeatedly worked
to secure access to the property. An earthen berm was constructed around the property (May 9, 2007,
Tr. 197), and a gated fence was installed at the entrance to the site. May 9, 2007, Tr. 205. The owner
testified that after the property was initially cleaned, the locks on the gate have been cut and
additional fly dumping occurred. The gates have been replaced numerous times and additional gates
have been installed. See: May 9, 2007, Tr. 205. A gate was present on the date of the alleged
violation. May 9, 2007, Tr. 9.
5.
Rather than causing or allowing the waste, the owner has fought fly-dumpers since
acquiring the property which he is developing. See: May 9, 2007, Tr. 173, 199. The owner was in
the process of putting down a gravel road to gain access to the back portion of the property with
heavy equipment when he was ticketed. May 9, 2007, Tr. 187-92.
6.
The inspector testified that Respondent would be given a reasonable time to clean up the
property "from the date of the inspection." May 9, 2007, Tr. 159. The inspector then denied that
trucks leaving with material from the property "wasn't a clean-up." May 9, 2007, Tr. 160. Mr.
Macial, the City's witness had previously testified that CTA waste, mistakenly dumped by another
entity, was being removed. May 9, 2007, Tr. 45-60, 73-9.
7. In
IEPA v. Cadwallader,
AC 03-13 (IPCB May 20, 2004), the site had "no fence and was
easily accessible from a heavy trafficked roadway." The City has failed to carry its burden that
Respondent either allowed waste to remain on the property or failed to make repeated efforts to
secure the site to prevent others from dumping waste. Respondent's agent, seeking to develop the
site, repeatedly sought to secure the site, and cleaned up fly-dumped material. When others deposited
waste he organized a massive clean-up which included putting in a stone road to allow heavy
Levine, P.C.
for Respondent
59 EAST 130th STREET, LLC
equipment access to other waste. Complainant has failed to present evidence that Respondent
acquiesced in any manner to the waste deposited by others. The waste deposited by fly-dumpers who
repeatedly cut the lock on the gate or knocked it down must be deemed uncontrollable
circumstances. The CTA waste deposited by E. King Trucking (which was supposed too be stored
in containers) was removed within the reasonable time indicated by the City's witness.
Wherefore, for the above and forgoing reasons, Respondent 1601-1759 EAST 130th
STREET, LLC prays that the Illinois Pollution Control Board dismiss Complainant's Administrative
Citation and for such further relief as it deems just and equitable.
Respectfully Submitted,
Dated: June 30, 2008
Jeffrey J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312) 372-4600