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BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

CITY QF CHICAGO DEPARTMENT

OF ENVIRONMENT,

Complainant,

1601-1759 EAST 130 th STREET, LLC,

RECEIVED

STATE OF ILLINOIS

Pollution Control

Board

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

North La Salle Street, Suite 900

Chicago, Illinois 60601

Chicago, Illinois 60602

PLEASE TAKE NOTICE that we hay this day filed with the Clerk of the Illinois Pollution

Control Board, Respondent's

Sur-Reply Brie

Dated at Chicago, Illinois, this 30

th day of Jun , • 008.

J FF Y J. LEVINE, P.C.

A orney. for Respondent

160 -17 9 EAST 130th 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 mentioned documents to the person to whom said Notice is

directed by hand delivery, this 30th

day of June 2

i■

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CITY OF CHICAGO DEPARTMENT

RECEIVED

JUN 3 0 2008

STATE OF ILLINOIS

Pollution Control

Board

1601-1759 EAST 130

th STREET, LLC'S SUR-REPLY

Now comes the Respondent, 1601-1759 EAST 130

STREET, LLC, by and through its

counsel Jeffrey J. Levine, P.C., and for its Sur-Reply, states and asserts as follows:

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.

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.

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 (IPCB 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.

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.

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

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, took it off the hinges or knocked it down. See: May 17, 2007, Tr.

26-27. Extraordinary efforts were taken to secure the gate. The fly-dumped material was deposited

due to 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. The City's witness had attempted to solicit bribes from Respondent's agent. See: May 17,

2007, Tr. 44. Respondent was not given an opportunity to correct the violation.

Respondent was in the process of a massive clean-up effort on March 22, 2006, when he

was ticketed by the City alleging that, rather than cleaning, the trucks were depositing waste.

Respondent's prior effort at clean-up resulted in charges. The City again ticketed him on October

3, 2006.

The alleged complaint referred to the property owner's nickname "Speedy". See: May 17,

2007, Tr. 16-7. The City's witness testified that he did not know whether the Respondent had caused

or allowed the dumping. May 17, 2007, Tr. 19. Further, a secure site would not be responsible for

fly dumping. May 17, 2007, Tr. 21. The owner would be given time to remove the material. May 17,

2007, Tr. 22. The witnesses' opinion as to whether Respondent had violated the statute was contrary

to the statute. May 17, 2007, Tr. 24.

10.

The City wishes to proceed in this matter with a witness who's opinion is contrary to the

statute involved.

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,

Jeffrey J. Levine, P.C. #17295

20 North Clark Street, Suite 800

Chicago, Illinois 60602

(312) 372-4600