BEFORE
    THE ILLINOIS
    POLLUTION
    CONTROL
    BOARDCLE
    8
    CITY OF
    CHICAGO
    DEPARTMENT
    )
    Y
    112009
    OF
    ENVIRONMENT,
    )
    STATE
    OF
    ILLINO,
    )
    Site Code:03 16485103
    PolIutjo
    Controj
    80$d
    Complainant,
    )
    )
    AC:
    2006-039
    v.
    )
    AC: 2006-040
    )
    AC: 2006-041
    JOSE
    GONZALEZ & 1601-1759
    EAST
    )
    AC: 2007-025
    - Consolidated
    130
    TH
    STREET,
    LLC., iNC., ET AL.
    )
    )
    Respondents.
    )
    RESPONSE CHALLENGING
    CLAIMED
    COSTS
    Now come
    Respondents Jose
    Gonzalez,
    and 1601-1759
    East
    130
    th
    Street,
    LLC,
    by and
    through
    their attorney, Jeffrey
    J.
    Levine,
    P.C.,
    and for their Response
    Challenging
    Claimed
    Costs,
    state
    and assert
    as follows:
    1.
    Pursuant
    to the Board’s Interim
    Opinion dated
    March 19, 2009,
    and the
    Affidavit of
    Costs
    dated May 31, 2009,
    Respondents
    file the instant Response
    Challenging
    Claimed
    Costs.
    2. In
    the
    thirty-five page Interim
    Opinion, the
    Board directs that the
    Clerk
    of the
    Board and
    the Chicago
    Department
    of Environment (CDOE)
    “provide
    cost documentation
    for the AC
    06-40
    and AC
    06-41 hearings.”
    $: March 19, 2009,
    Interim
    Opinion,
    p.
    3.
    3.
    In
    response, the Assistant
    Clerk of the Board
    supplied an affidavit
    and correspondence
    dated March 31, 2009,
    delineating
    the
    “true
    and
    accurate”
    costs for the hearings
    in AC
    06-3
    9, AC
    06-40,
    AC
    06-41
    and AC 07-25.
    $ç:
    Exhibit A, March31,
    2009
    correspondence
    and
    affidavit.
    4. In a filing dated
    April 15, 2009,
    the
    City of
    Chicago
    Department of
    Environment indicated
    that
    it would not
    seek hearing costs.
    5. Because
    the
    CDOE
    did
    not
    establish
    that Speedy Gonzalez
    Landscaping,
    Inc., was liable
    in AC 06-39,
    Respondents
    should
    not be
    responsible
    for hearing costs
    associated with
    efforts related
    to
    those
    charges.
    6. Further, as the CDOE did
    not prove that Respondents Mr. Gonzalez or
    1601-1759 East
    1
    30
    th
    Street,
    LLC., caused or allowed the
    open
    dumping
    of waste in standing
    water, Respondents
    should not
    be responsible
    for hearing costs associated with efforts related to those charges.
    7. Also charged but not demonstrated were the charges in
    AC
    07-25, against Respondent
    160 1-1759 East
    130
    th
    Street,
    LLC.
    Respondents
    should
    not be
    responsible for hearing costs
    associated
    with
    efforts related to that matter.
    8. As the Board has determined, in the Interim Opinion, that numerous
    allegations filed were
    baseless, Respondents could not have conceded the allegations and accepted
    the imposition of fines
    in
    those instances. Respondents were therefore required
    to
    proceed to hearing in order
    to refute
    the
    unsubstantiated allegations.
    9. For
    this reason, the costs ofthe hearing cannot be attributable to the Respondents. To hold
    Respondents responsible where certain allegations are found to be baseless
    amounts to a form
    of
    extortion
    where the
    CDOE can
    charges
    baseless allegations and a
    Respondent must either accede
    to all charges or
    become responsible for
    paying the
    costs
    of a
    protracted hearing to challenge
    baseless allegations.
    10. Because the March 19, 2009, Interim Opinion found that numerous charges against
    Respondents were not established at hearing, the Opinion
    specifically
    requested
    that the Clerk of
    the
    Board provide cost documentation for the AC
    06-40
    and
    AC 06-41 hearings. The
    March 31, 2009,
    Affidavit of
    Costs of
    the hearings was not be bifurcated into portions indicating
    the
    specific
    documentation
    for the AC 06-40
    and AC 06-4 1
    hearings,
    most likely
    because
    it would have been
    impossible
    to segregate testimony resulting in liability and non-liability. The testimony
    of
    most all
    the witnesses,
    in many instances, tended
    to
    exculpated
    the
    Respondents.
    11.
    It would be inequitable
    to hold Respondents responsible for costs that resulted in
    unsubstantiated
    charges.
    This would be akin to holding the CDOE responsible for Respondent’s
    attorney’s
    fees for the unsubstantiated
    allegations.
    12. As the costs for
    portions of
    the
    hearing holding Respondent liable, cannot be separated
    from those hearing
    costs
    related
    to unsubstantiated allegations,
    the
    costs cannot
    be
    deemed
    as “true
    and accurate” as claimed in the March31, 2009,
    affidavit. The affidavit
    ignores the Board’s March
    19,2009, instructions to
    provide cost documentation for only the AC 06-40 and AC
    06-41 hearings.
    Wherefore, for the above and forgoing reasons, Respondents Jose Gonzalez,
    and 1601-1759
    East 1
    30
    th
    Street, LLC, pray that this
    Board
    decline to impose costs for the hearings as
    there
    is no
    basis to accurately determine
    the
    costs for
    the AC 0 6-40 and AC 06-41 hearings
    and for such further
    relief as is just and equitable.
    Dated: May 11, 2009
    Jeffrey J. Levine,
    P.C. #17295
    20 North Clark
    Street, Suite 800
    Chicago,
    Illinois 60602
    (312)
    372-4600
    Submitted,
    Jeffrey Levine, P.C.
    Attorney’for Respondents
    Josèki{zalez,
    and
    160 1-1759 East
    130th
    Street, LLC.
    ILLINOIS
    POLLUTION
    Cn
    March
    31,
    2009
    TO:
    ALL
    PARTIES
    CONCERNED
    01,
    BOAJ
    RE:
    AC
    2006-039,
    City
    of
    Chicago
    Department
    of
    Environment
    v. Speedy
    Gonzalez
    Landscaping,
    Inc.
    (CDOE
    #
    06-02-AC)
    AC
    2006-040,
    City of
    Chicago
    Department
    of
    Environment
    v.
    Jose
    R.
    Gonzalez
    (CDOE
    #
    06-03-AC)
    AC
    2006-041,
    City
    of
    Chicago
    Department
    of
    Environment
    v.
    1601-1759
    East
    130
    th
    Street,
    LLC
    (CDOE
    #
    06-01-AC)
    AC 2007-025,
    City
    of
    Chicago
    Department
    of
    Environment
    v.
    1601-1759
    East
    130
    th
    Street,
    LLC
    (Site Code
    0316485103)
    Pursuant
    to
    the
    March
    19, 2009
    Interim
    Opinion
    and
    Order
    adopted
    in
    the
    above-
    referenced
    matter,
    attached
    is
    an
    Affidavit
    of
    the
    Costs
    that
    were
    incurred
    by
    the
    Board
    as a
    result
    of hearing.
    JTT/rne
    Sincerely,
    John
    T.
    Therriault
    Assistant
    Clerk
    of
    the
    Board
    Attachments
    ThLINOIS
    POLLUTION CONTROL
    BOARD
    March
    31, 2009
    IN THE MATTER OF:
    )
    )
    CITY OF CHICAGO DEPARTMENT
    OF
    )
    ENVIRONMENT,
    )
    )
    Complainant,
    )
    )
    v.
    )
    AC 06-39
    )
    (Administrative
    Citation)
    SPEEDY GONZALEZ LANDSCAPING,
    )
    INC.,
    )
    Respondent.
    )
    CITY OF CHICAGO
    DEPARTMENT
    OF
    )
    ENVIRONMENT,
    )
    )
    Complainant,
    )
    )
    v.
    )
    AC06-40
    )
    (Administrative
    Citation)
    JOSE R. GONZALEZ,
    )
    )
    Respondent.
    )
    CITY OF CHICAGO
    DEPARTMENT
    OF
    )
    ENVIRONMENT,
    )
    )
    Complainant,
    )
    )
    v.
    )
    AC
    06-41
    )
    (Administrative
    Citation)
    1601-1759
    EAST 130th STREET, L.L.C.,
    )
    )
    Respondent.
    )
    )
    CITY
    OF
    CHICAGO
    DEPARTMENT
    OF
    )
    ENVIRONMENT,
    )
    )
    Complainant,
    )
    )
    v.
    )
    AC
    07-25
    )
    (Administrative
    Citatio’n)
    1601-1759
    EAST
    130th
    STREET,
    L.L.C.,
    )
    (Consolidated)
    )
    Respondent.
    )
    AFFIDAVIT
    OF
    COSTS
    I, John
    T.
    Therriault,
    Assistant
    Clerk
    of
    the
    Pollution
    Control
    Board
    (Board),
    state
    that
    the
    below-listed
    Administrative
    Citation
    costs,
    incurred
    by
    the
    Board
    as a
    result
    of
    hearings
    on
    May
    9
    and
    May
    17,
    2009,
    in
    the
    above-captioned
    proceedings,
    are
    true
    and
    accurate:
    Pollution
    Control
    Board
    Costs:
    Hearing
    Officer
    $
    0
    Court Reporting:
    May
    9,
    2007
    $1,332.70
    May9,
    2007
    $
    76425
    May
    17,
    2007
    $
    850.00
    May
    17,
    2007
    $1,949.25
    Total
    $
    4.896.20
    John
    T.
    Therriault
    Assistant
    Clerk
    illinois
    Pollution
    Control
    Board
    Subscribed
    and
    sworn to
    before
    me
    this
    31st
    Day
    of
    March,
    2009
    rCIALSEArH
    Notaric
    L87
    2
    12J
    PROOF OF
    SERVICE
    I, John T. Therriault, do
    state
    that I have this
    31st day of March, 2009, served the
    attached
    Affidavit of Costs
    upon the
    persons
    listed below,
    by placing
    same in envelopes
    addressed to said persons, first
    class mail,
    postage
    prepaid, and depositing same in a United
    States mailbox located at 100 West Randolph Street, Chicago,
    Illinois 60601.
    1601-1659 E. lO3th St. LLC
    10630 S. Torrence
    Chicago, IL 60617
    Dennis W. Winkler, Ltd.
    161 N. Clark
    Street
    Suite
    3100
    Chicago,
    IL 60601-3242
    City of
    Chicago Department
    of Environment
    30
    North LaSalle Street
    Suite
    500
    Chicago, IL
    60602
    Chicago
    Department
    of
    Law
    30
    North LaSalle Street
    Suite
    900
    Chicago,
    IL
    60602
    Jeffrey J. Levine
    20 N. Clark Street
    Suite 800
    Chicago, IL 60602
    Speedy Gonzalez, Inc.
    P. 0. Box
    359
    Naperville,
    IL 60566-03 59
    Jo
    T. Therriault
    ssistant
    Clerk
    SUBSCRIBED AND SWORN TO BEFORE MB
    THIS
    31st DAY OF MARCH,
    2009
    Notary
    flublic
    “OFFICIAL
    SEALS’
    Nolary
    Lynn
    Pub1ic
    Marie
    State
    Patras
    of
    IUinj
    3
    BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOAR])
    CITY OF
    CHICAGO
    DEPARTMENT
    OF
    ENVIRONMENT.
    V.
    Complainant,
    JOSE
    GONZALEZ
    &
    1601-1759
    EAST,
    130
    th
    STREET,
    LLC.,
    INC.,
    ET
    AL.
    Respondents.
    )
    )
    ECVED
    )
    Site
    Code:031648
    4
    9<5
    OFFICE
    MY
    I
    9JflO
    )
    AC: 2006-039
    -.
    )
    AC: 2006-040
    STATE
    OF
    LL1NOS
    )
    AC: 2006-041
    PoHuton
    Contro
    Board
    )
    AC:
    2007-025
    Consolidated
    )
    )
    NOTICE
    OF
    FILING
    TO:
    Mr. Bradley
    P.
    Halloran
    Illinois Pollution
    Control
    Board
    100
    West Randolph
    Street,
    Suite 11-500
    Chicago,
    Illinois 60601
    Ms. Jennifer
    A.
    Burke,
    Senior
    Counsel
    City
    of Chicago,
    Dept.
    of
    Environment
    30 North
    La Salle
    Street,
    9t
    Floor
    Chicago,
    Illinois
    60602
    PLEASE
    TAKE
    NOTICE that
    we
    ha
    this day filed
    with
    the
    Clerk
    of the
    Illinois Pollution
    Control
    Board,
    Respondent’s
    Response
    Cha
    ging Claimed
    Costs.
    Dated
    at Chicago,
    Illinois, this
    1
    jth
    day of May,
    09.
    Jeffrey
    J. Levine,
    P.C. #17295
    20
    North
    Clark
    Street,
    Suite
    800
    Chicago,
    Illinois
    60602
    (312) 372-4600
    J
    FRE J.LEVINE,P.C.
    Atto
    for Respondents
    Jose
    Gonzalez,
    and
    1601-1759
    East
    130
    th
    Street,
    LLC.
    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
    mentió
    documents
    to
    the person
    to
    whom
    said
    Notice
    is
    directed
    by hand delivery,
    this
    1
    1
    th
    day
    of
    IvNv2009.
    J. LEVINE,
    P.C.

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