BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CITY
OF
CHICAGO
DEPARTMENT
OF
ENVIRONMENT,
Complainant,
JOSE
GONZALEZ
& 1601-1759
EAST
130TH
STREET,
LLC.,
INC.,
ET
AL.
Respondents.
)
)
AC:
2006-039
)
AC:
2006-040
)
AC:
2006-041
)
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,
9
th
Floor
Chicago,
Illinois
60602
PLEASE
TAKE
NOTICE
that we
have
this day
filed
with the
Clerk
ofthe Illinois
Pollution
Control
Board,
Respondent’s
Motion
to
Reco
der
or
Modify
Final
Order
and
Motion
to Stay.
Dated
at Chicago,
Illinois,
this
8
th
day
Jeffrey
J. Levine,
P.C.
#17295
20 North
Clark
Street,
Suite
800
Chicago,
Illinois
60602
(312)
372-4600
JFF13Y
J.
LEVINE,
P.C.
A
rn
y
for Respondents
Jose
onzalez,
and
1601-1759
East
130
th
Street,
LLC.
PROOF
OF
SERVICE
The
undersigned,
being
first
duly
sw
on
oath,
deposes
and
says that
he
served
a
copy
of
the
Notice
together
with the
above
mentio
d
cuments
to
the person
to
whom
said Notice
is
directed
by hand
delivery,
this
8
th
day
of
)
)
)
V.
RECEVED
Site
Code:03
16485103
CLERK’S
OFFICE
JUL
082009
STATE
OF
LLINOS
Pollution
Contro’
Board
JEFF1
J. LEVINE,
P.C.
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOARD
CITY
OF
CHICAGO
DEPARTMENT
)
QF ENVIRONMENT,
)
)
Site Code:03 16485103
)
)
AC: 2006-039
)
AC: 2006-040
)
AC: 2006-041
)
AC: 2007-025 - Consolidated
)
)
)
MOTION
TO
STAY
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 Motion
to
Stay
enforcement of the Board’s
June
4, 2009, Order, state and assert as follows:
1.
Respondents have filed a Motion to Reconsider or Modify the Board’s Final Order.
2. Respondents
intend
to
appeal he decision
if
the Board
does
not grant the requested
relief.
3. Because of the
substantive
issues raised
in the
Motion
to Reconsider, Respondents
pray
that enforcement of
the Board’s Order be stayed until resolution of the matter.
Wherefore, for
the
above and forgoing
reasons, Respondents
Jose Gonzalez, and 160 1-
1759
East 13
th0
Street, LLC, pray that this Board reconsider and/or modify its final order and for
such further relief as is just and
equitable.
esp
ctfully Submitted,
J frey Levine, P.C.
A
me
for Respondents
Jose
nzalez, and
1601-1759 East
130
th
Street, LLC.
Jeffrey J. Levine, P.C. #17295
20 North Clark Street, Suite 800
Chicago, Illinois 60602
(312)372-4600
Complainant,
v.
JOSE GONZALEZ & 1601-1759 EAST
l3O STREET,
LLC.,
iNC., ET
AL.
Respondents.
JUL
U
82009
pI7
Dated: July 8, 2009
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CITY OF
CHICAGO
DEPARTMENT
)
CLERK’S
OFFICE
OF
ENVIRONMENT,
)
JUL
08
jjg
)
Site
Code:0316485103
Complainant,
)
POllUtIOn
ATE
OF
Control
ILLINOIS
Board
)
AC:
2006-039
v.
)
AC:
2006-040
)
AC:
2006-041
JOSE
GONZALEZ
& 160 1-1759
EAST
)
AC: 2007-025
- Consolidated
l3O STREET,
LLC.,
iNC., ET AL.
)
)
Respondents.
)
MOTION
TO RECONSIDER
OR MODIFY
FINAL
ORDER
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
Motion to
Reconsider or Modify
the
June
4, 2009
Final
Order,
state and assert
as
follows:
I.
Introduction
1. The Illinois Pollution
Control
Board, (hereinafter
“the Board”),
in Orders dated
March
19,
2009 and June 4, 2009,
made numerous
factual
and legal rulings
regarding complaints
made
by
the
Chicago Department
ofEnvironment
(hereinafter
“CDOE”), against
Respondents
and another
entity.
Said Respondents
were cited
for two specific
types
of pollution,
material that
had been fly dumped
on the
property and CTA waste
from the
Brown
Line renovation
that had
recently been dumped
on
the
property by E.
King Hauling.
2.
The Board ruled that
the CDOE did
not prove
that
Respondents
caused
or allowed the
open
dumping
of the
fly-dumped
waste. $ç: March
19, 2009,
Order,
p.
26.
However, with regard
to the
CTA
waste,
the
Board ruled that 1601-1759
East
130
th
Street,
LLC., (hereinafter
“
130
th
LLC”) and
Jose Gonzalez,
Respondents herein,
allowed
the open dumping
of waste in a manner
resulting
in
litter,
open
burning, and the
disposition
of
general construction
or demolition
debris. See:
March
19,
2009, Order,
pp.
27-9.
IL
Respondents
Did Not
Cause
or Allow
the
Pollution
3.
While knowledge
is
not
an
element
of a violation
of
Section
12(a),
alleged
polluters
are
not
charged
under
a theory
of
strict liability.
The
State must
prove that
the alleged
polluter has
the
capability
of
control
over
the source
ofthe pollution
or that
the alleged
polluter
was in control
ofthe
premises
where
the pollution
occurred.
People
v. AJ Davinroy
Contractors,
249 Ill.App.3d
788,
793-96,
618N.E.2d
1282,
1286-88
(5
t1
’Dist.
1993);PhillzpsPetroleum
Co. v.
IllinoisEnvironmental
Protection
Agency,
72
Ill.App.3d
217,
390 N.E.
2d 620
(2 Dist. 1979).
In this
instance,
the Board
is
mistaken
in labeling
Respondents
as
the
polluters.
The
Board concluded
that
E.
King Hauling,
without
the
permission
of Respondents,
deposited
the
CTA
waste on
the ground
at the site.
.çç:
March
19, 2009,
Order,
p.
24.
4. The
Board relies
upon
People
v.
Fiorini,
143
Il1.2d 318,
574 N.E.2d
612
(1991) and
Freeman
Coal
Mining
Corp.
v.
PCB,
621
Ill.App.3d
157, 163,313
N.E.2d
616, 621(5thDist.
1974).
The
Fiorini
decision
involved
an
amendment
to the
statute
requiring
that
a third-party
defendant
have
actual
knowledge
that
he caused
or
contributed
to the
illegal
open
dumping
or open
burning
in
order
for liability
to
attach.
The decision
reviewed
the
established
rules regarding
violations
and
concluded
that
the amendment
could
not be
retroactively
applied.
While
Fiorini
held that intent
or
knowledge
are not
recognized
elements
to prove
a violation,
the analysis
applied
by
Illinois courts
to
determine
whether
an
alleged polluter
has
violated
the
act is
whether
the
alleged
polluter
exercised
sufficient
control
over the
source
of
the
pollution.
Fiorini, 143
Ill.2d at
346. In the
Freeman decision,
the
Freeman
Mine
argued
that
it
could
not be held
liable because
naturally
occurring
rainwater
caused
the
refuse
from
the
mining
operation
(gob
pile)
to
run off
into
an
adjacent
creek.
The
Court
premised
the
liability upon
the fact
that the
Freeman
Mine
had
created
and
was
aware
of the
pollution refuse.
• .there
is no question that Petitioner had knowledge
of the
pollutional discharges flowing
from
its land and the gob pile
it had created. Freeman Id.
621 IlLApp.3d at 161
In the instant case, Respondents neither created the pollution
nor
were
aware of the dumping until
after the loads had been dumped contrary to the agreement
to
store the material in roll-off
boxes.
5. In Illinois, a property owner is responsible for pollution on his land,
unless the
facts
establish
that the owner lacked the capacity to control the source
of
the pollution or had taken
precautions to prevent intervening causes of the pollution. Perkinson v. illinois Pollution Control
Board, 187
Ill.App.3d 689, 694-95, 543
N.E.2d
901(3rd Dist 1989).
Courts seek to hold owners
responsible
for
pollution that develops on an owner’s
property
or
pollution that occurs where an
owner
has
not
adequately
secured his property against vandals. $ç: Union Petroleum
Corp.
v.
United
States, 651 F.2d 734
(Ct.
Cl.
1981). If a property owner does not
exercise sufficient control
over the
source
of
the pollution in
such
a way as
to
have
caused, threatened, or allowed the pollution,
he cannot be held
responsible
for a violation. Phillips Petroleum Company v.
illinois Environmental
Protection Agency,
72 Ill.App.3d 217, 220-21, 390 N.E.2d 620 (2’’ Dist. 1979).
6. The findings of
liability against respondents are against the manifest weight of the
evidence as the Respondents herein
are
not the
alleged
polluters. In this instance,
the source
of the
pollution is
the
City
of Chicago’s Transit Authority. (The Complainant is also the City of Chicago.)
The pollution was
delivered
by
E. King Hauling working as a sub-contractor for Paschen
Construction
pursuant to a contract
with
the City of Chicago.
All workers at the site at the time
of
the
CDOE inspection
were
employed by E. King Hauling or Paschen
Construction.
See: March
19,
2009,
Order,
p.
14. It was the E.
King employees who were burning wood to keep warm. See: March
19, 2009, Order,
p.
28.
7.
As
the
Board
has
determined,
the
polluters
were
a
different
entity
than
Respondents.
It
is
uncontested
that
the
pollution
originated from
the
renovation
of
CTA’s
Brown
Line,
and
was
dumped
on Respondent’s
land
contrary
to
the
agreement
made
with
Respondent
Jose
Gonzalez.
Mr.
Gonzalez,
immediately
upon
being
made
aware
that
E.
King
Hauling
had
violated
their
agreement,
proceeded
to
this
site
and
supervised
the
cleanup
of the
site.
In
this
instance,
CDOE
cannot
demonstrate
that
the
alleged polluter
had
the
capability
of
control
over
the
pollution
or that
the
alleged
polluter
was
in
control
the
premises
where
the
pollution occurred,
as
the
actual
entity
that
caused
and
allowed
the
pollution,
E.
King
Hauling,
was
not
charged.
8. The
hearings
revealed
that
the CDOE
chose
not
to conduct
an
adequate
investigation
(which
would
have
resulted
in
potential
liability
for
the
City
of Chicago),
and
chose
not
to
charge
the
contractors
working
under
contract
with
the City
of
Chicago.
The
CDOE
has
not
demonstrated
that
Respondents
violated
the
act
as
they
did
not
exercise
sufficient
control
over
the
source
of
the
pollution,
the
CTA.
In this
instance
Respondents
were
not
the
source
of
the
pollution,
did
not
cause
the
pollution,
did
not
allow
the
pollution
and
did
not
know
the
pollution
had
occurred
until
after
the
fact.
The
hearings
demonstrated
that
Respondents neither
caused,
threatened
nor
allowed
the
pollution.
The
least
culpable
party
was
ticketed. As
the
violation
is
penal
in nature,
the
plain
meaning
of
the
statute
must
be
strictly
construed.
III.
The
Pollution
was
a Result
of Uncontrollable
Circumstances
9.
During
the
course
ofthe
limited
investigation,
Inspectors
Macial
and
Chris
Antonopoulos
discovered
the
entities
responsible
for
a
large
amount
of
debris
on
the
site.
Both
investigators
testified
regarding
an
agreement
entered
into
regarding
what
has
been
deemed
the
“suspect
CTA
waste”
at
the property
in
question. Mr.
Antonopoulos
described
how
the
agreement
was
between
Mr.
Gonzalez,
Paschen
Construction,
B.
King
and
a
representative
of
the
CTA.
The
agreement
called
for
CTA
waste
material
from
the
Brown
Line
construction,
to
be
stored
in
roll-off
truck
boxes
over
the
weekend
at
the
site
in
question.
AC
2006-39,
May
17,
2007,
Tr.
31;
May
9,
2007,
Tr.
44,
59-60.
10.
When
the
CID
landfill
opened,
the
roll-off
boxes
would
be
removed
from
the
property
and
brought
to
CID.
AC
2006-3
9,
May
17,
2007,
Tr.
31.
Complainant’s
investigation
revealed
that,
either E.
King
or
Paschen
Construction
didn’t
follow
the
agreement
to store
the
CTA
waste
in
the
roll-off
trucks.
It
was
that
entity
who
caused
the
CTA
waste
to be
deposited
at the
property
in
question.
May
17,
2007,
Tr.
49.
11.
The
investigators
collected
manifests
at the
site
which
indicated
that
the
waste
material
came
from
the
CTA
at
567
West
Lake
Street.
2006
AC-39, May
9,
2007.
Tr.
33-6.
E.
King
was
the
hauler
on
the
manifests.
2006
AC-39,May
9,
2007,
Tr.
83-4.
Mr.
Antonopoulos
testified
that
Mr.
Maciel
had
the
hazardous
waste
manifests
on the
day
of
the
investigation.
2006
AC-39,
May
17,
2007,
Tr.
44-5.
No
tickets
were
issued
to
the
CTA,
Paschen
Construction
orE.
King
Trucking.
The
investigators
allowed
the
waste
to
continue
to
be
removed.
AC
06-39,
May
9,
2007,
Tr.
204.
12.
Complainant’s
investigation
revealed
that,
either
E.
King
or
Paschen
Construction
didn’t
follow
the
agreement
to
store
the
waste
in
the
roll-off
trucks. It
was
that
entity
who
caused
the
CTA
waste
to be
deposited
at
the
property
in
question.
2006
AC-40,
May
17,
2007,
Tr.
49.
13.
Respondents
had
taken
every
precaution
to
insure
that
the
waste
would
be
kept
in
roll-off
boxes
at the
site.
The
property
was
secured
with
fencing
and
a locked
gate.
Respondent
Gonzalez
entered
into
agreements
with
reputable
contractors.
Respondents
were
not
the
polluter
nor
did
they
encourage
or allow
the
action.
The
pollution
was
dumped
as
a result
of
uncontrollable
circumstances,
a
mistake
made by
employees
of
another
entity.
IV.
The
Evidence
of
a
Solicitation
of
a
Bribe
was
Neither
Unsubstantiated
nor
Inconclusive
14.
Inspector
Rafael
Macial knew
Respondent
Jose
Gonzales
growing
up
in
his
neighborhood.
Respondent
Gonzalez testified
that
Investigator
Macial
had
previously
threatened
him
when
he refused
to “work
out”
(pay
a
bribe)
an
alleged
violation.
Macial
told Respondent:
“You’ll
pay
for
this.”
$:
AC
06-39,
May
9,
2007,
Tr. 18
1-82.
15.
Inspector
Macial
was
not
adverse
to
“working
out”
claims.
Inspector
Macial
testified
that
on
occasions
he
has discussed “working
out”
claims
with
alleged
violators
rather
than
issuing
violations.
See:
AC
06-39,
May
9, 2007,
Tr.
126-28.
Mr.
Macial
testified
that
he has
told
certain
individuals
that
he could
help
them
avoid
citations.
May
9,
2007,
Tr. 126.
He
would
say
to
individuals,
“Help
me
help
you
avoid
a
citation.”
May
9,
2007,
Tr.
127.
Inspector
Macial
denied
asking
for a
bribe
stating
that
based
upon
his
credibility,
he
was pretty
sure that
he
had
never
taken
a bribe.
See:
May
9,
2007,
Tr.
124-27.
However,
Respondent
Gonzalez
interpreted Mr.
Macial’s
offers
to
“work
it
out”
as
a request
for
a bribe.
May 9,
2007,
Tr.
180-83.
16.
As Respondent
had refused
to pay
Investigator
Macial
the bribe
he
had
requested,
Macial
took
specific
retaliatory
actions.
Inspector
Macial
ticketed
Respondent
Jose
Gonzalez’s
landscaping
company,
(believing
that he
was
under
contract
for the
CTA),
telling
him:
“...I’ll
see
to
it that
you
never
get
work
from
the
CTA
again.”
:
AC
06-3
9,
May
9,
2007,
Tr.
204.
He told
Respondent
Gonzalez,
“...we’re
going
to
write
you
a
ticket
for
everything I could
write
you a
ticket
on.”
May
9,
2007,
Tr.
193.
Baseless
violations
were
written
to
Speedy
Gonzalez
Landscaping,
Inc.,
in
an
effort
to
preclude
that
entity
from
obtaining
city
contracts.
17.
The
alleged
violations also
contained
baseless
allegations
regarding
securing
the
property,
salt
unloading
operations,
ACM
or
asbestos,
waste
next
to residential
homes
and oil
flowing
into
the
sewer.
AC
06-39,
May
9,
2007,
Tr.
68,
129-32.
Macial
contended
that
these
charges
were
put
into
his
investigative
report
because
Respondent
Speedy
Gonzalez
Landscaping,
Inc.,
committed the
additional
offenses
(AC
06-39,
May
9.
2007,
Tr.
130),
but
he
had
no evidence
that
the
offenses
occurred. AC 06-39,
May 9,
2007, Tr.
68, 129-32.
These allegations are listed as attachment “B”
in Complainant’s Inspection Reports. $: Complainant’s Exhibits.
18. Mr. Maciel conceded that he had “no idea” why the violations were charged
when
there
was no basis for them. AC 06-3 9, May 9. 2007, Tr.
132. Investigator Macial, on March 22, 2006,
wrote numerous false allegations yet denied that the offenses had occurred. He
ticketed entities who
did not own or control the property. Macial testified that
he
just
assumed that Mr. Gonzalez “was
doing
something illegal.” 2006 AC-40, May
9,
2007, Tr. 83. This is direct evidence
indicating
that
Macial attempted to retaliate against Respondent for failure to pay a
bribe.
19.
Another indication is that, even though Respondents did not cause
the
pollution,
Respondents were not
allowed time
to
clean the property. Chris Antonopoulos
testified that people
are given time to clean up
sites where they did not cause or allow the debris. May 17, 2007, Tr. 42.
Antonopoulos testified
that
ifa
property owner has waste material dumped on his land, it is
common
for
investigators
to give
the owner time to clean up the property. Correspondingly, Antonopoulos
stated that a person with a
large amount
of
waste would
be
given more time than a person with less
debris. May 17, 2007, Tr. 40-2. This is consistent with the statute which allows
corrective action
to
eliminate
the
pollution
within a reasonable time. See: 415 ILCS 5/3. In this instance, contrary
to
the statute, Respondents
were not allowed reasonable time (or any amount
of
time) to eliminate
the
waste. Respondents
were told by investigators to stop cleaning the site and were given a fourth
citation when they
followed those instructions. The Board ruled that this fourth
citation
was
improperly issued. $:
March 19, 2009 Order,
pp.
3, 35. However, no mention
is made
of
Complainants failure to follow the
statute
or the retaliatory nature of the CDOE’s agents.
20. No
evidence impeached the testimony ofRespondent Jose Gonzalez
that
Inspector Macial
had sought a bribe. In
contrast, Inspector Macial’s testimony was consistently false. Maciel
maintained at
the hearing that the trucks
on site were
dumping
material.
May
9.
2007,
R. 42, 72, 74,
78. He
later
testified that
he
assumed
this.
May
9, 2007,
Tr. 137. Mr. Macial initially
testified
that
he could not determine
whether
trucks
were loading
or
unloading at
the site. May
9. 2007, Tr. 16.
He
testified
that he concluded
that
another
entity’s trucks were
dumping at
the site.
May
9. 2007, Tr.
72,
74. This conclusion
is contrary
to
his
report
(May
9.
2007, Tr. 43,
46-7), and his prior
deposition
testimony
wherein
he
testified that the trucks
were
loading.
May
9,
2007,
Tr. 74-6.
21. Maciel
testified that he would
impound
a
truck
if it was dumping
but
did not
impound
the E. King
trucks on the lot. May
9,
2007,
Tr.
48.
Neither Macial
or anyone else
saw
trucks
dumping.
May
9, 2007,
Tr. 81. He agreed that
he testified both at
the hearing
and
at his deposition
that,
rather than
loads being dumped,
the
material
was being removed and
that the trucks
were
loading. May
9,
2007,
Tr. 138.
He then testified that
a worker told him,
“We’re bringing
it here.”May
9,
2007,
Tr. 141, line
6.
He
then testified, “I
don’t recall if he did
say that
or not.”
May 9, 2007, Tr.
141,
line 12. The Board
termed
this
completely
fluid testimony
as “...merely
in the nature
of
clarification and amplification.”
Macial
‘ s claim ofFBI training
is deemed
“irrelevant”
by
the
Board.
See:
March
19,
2009
Order,
p.
9.
22.
The
issue
is not
that the material was
both deposited
and removed or Macial’s
testimony
regarding
some hypothetical
training, rather
the issue
is
Macial’s observations
and
his complete
inability to provide
competent evidence
related thereto.
A more rational witness,
Mr. Antonopoulos,
testified that the
individuals
on
site
were cleaning
up the site, moving
piles and dumping
them
into
E.
King trucks
which
left the site. May 17, 2007,
Tr. 59-60.
Antonopoulos
concluded that this
was
consistent with cleaning
the site.
May 17, 2007, Tr.
53-4.
The
Board
however,
did not believe
that
Macial’s
false
testimony materially
prejudiced
Respondents
($:
March 19,
2009 Order,
p.
9)
and
relied upon
his testimony in holding
Respondents
liable.
23.
Another
indication
of
the retaliatory
nature
of
the
investigators
was the
utter
lack
of
information
regarding
other
entities
at the
site. No photographs
of workers
or E.
King trucks
were
taken
by the
investigators.
Neither
the manifests
nor
any
of
the other
documents
observed
that
day
regarding
other individuals
at the site
are
included
in the
investigation
report.
2006 AC-40,
May
9,
2007.
Tr.
3 5-8. No mention
was
made
in
the
investigation
report
that
Elaine
King
was present
on site
discussing
the
agreement.
2006 AC-40,
May
9,
2007,
Tr. 44-9. Macial
testified
that
he selectively
excluded
such
information
in his
investigation
report.
2006
AC-40, May
9,
2007,
Tr. 48-52.
24.
Mr. Macial
further
testified
that
his
ability
to read peoples
credibility
was
part of
his
investigation.
2006 AC-3
9,
May
9,
2007,
Tr.
117.
He claimed
that
he had learned
this
in special
FBI
training
(May
9,
2007,
Tr. 116-24),
but
Maciel
could
not give
any specifics.
He didn’t
recall
the
name of the
course, the
name of
the teacher,
the
address
of the
course,
and finally,
that he paid
for
the course
with a money
order.
As Mr.
Macial’ s
credibility
as a witness
was in question,
the
Hearing
Officer
should
have
taken
part in
the Board’s
decision.
25. Throughout
the
course
ofthe discovery
and
hearing,
Inspector
Macial
repeatedly
referred
to
Respondent
Jose
Gonzalez
as “Speedy
Gonzalez,”
the
name
of
the Respondent
landscaping
company.
See: AC
06-3
9,
May
9,
2007,
Tr.
39-40. After
the initial
violations
were
alleged,
an
unknown
individual
contacted
the Department
of the
Environment
and
stated
that
“Speedy
has
dumped
new
C and
D
waste on
the
site.”
See: AC
07-25, May
17, 2007,
Tr. 15-8.
Additional
violations
were then
filed against
Respondent.
26.
The
testimony
given
by Respondent
Gonzalez,
the admission
by
Macial
that
he would
“work
out” violations
(“Help
me
help
you
avoid
a citation.”),
the
fact that no
other entities
received
violations,
the
duplicitive
nature
ofthe violations
given
to multiple
entities,
the
unexplained
baseless
nature
of many
of
the charges
and the
false
testimony
provided
by
Inspector
Macial
are direct
and
indirect
evidence
of a Solicitation of a
Bribe.
The
ruling
of
the
Board
in
holding
that
the
claim
that
Macial
sought
a
bribe
was
unsubstantiated
and inconclusive ($: March
19,
2009
Order,
p.
9)
is
arbitrary,
capricious
and
against
the
manifest
weight
of
the evidence.
The Board
cannot
hold
that
discovery
omissions
were harmless
and also
rule
that Respondents proof
regarding
the
solicitation
of
a
bribe
was
inconclusive
and
unsubstantiated.
See:
March
19,
2009
Order,
p.
9.
The
Board
is
unaware
if
the discovery
requested
would
have
substantiated
the
proofthat
a
bribe was
solicited.
For
instance,
ifCDOE
investigators
identified
witnesses
present,
by providing
their business
cards,
those
witnesses
could have
lent
credence
to Mr.
Gonzalez’s
testimony
and
further
impeached
Inspector
Macial.
The
action
by
the
Board
is
against
the manifest
weight
of the evidence
and
is
arbitrary
and
capricious.
V.
Complainant
did
not
sustain
its Burden
of Proof
27. The
Board’s
March
19,
2009
Order
holds that
pursuant
to the
agreement,
E. King
Hauling
was
supposed
to keep
all
loads
of CTA
debris
inside roll-off
containers
(dumpsters) or the
beds of
the
dump
trucks
while
on
the
site. $:
March
19,
2009
Order,
p.
12. All
workers
on
the site
at the
time
of the
CDOE
inspection
were
employed
by E.
King
Hauling
or
Paschen
Construction.
:
March
19,
2009 Order,
p.
14.
Elaine
King
had
not
followed
the
agreement
to
store
material
on
site
where an
E. King
Hauling
supervisor
was
also present.
:
March
19,
2009 Order,
p.
15. Without
Mi.
Gonzalez’s
knowledge,
the
agreement
was
not followed
and the
hauler
dumped
CTA
waste
at
the site
without
permission. $:
March
19, 2009
Order,
p.
24.
When
Mr.
Gonzalez
learned
of
the
breach
of the
agreement,
he
immediately
and vociferously
demanded
that the
waste
be
cleared
from
the
property.
$ç:
March
19,
2009
Order,
p.
19.
28.
CDOE
witness
Antonopoulos
testified
that
it
was common
for investigators
to give
the
owner
time
to clean
up the
property
and
that an
owner
with a
large amount
of
waste
would
be given
more
time than
one
with
less
waste.
See: March
19,
2009
Order,
p.
19.
Respondent
was
never
contacted
by
CDOE
and
given
time
to
clean
the
debris.
$:
March
19, 2009
Order,
p.
22.
Respondent
was
not the
owner
of
the
property.
It was
owned
by Respondent
1601-1759
East
130
th
Street,
LLC.
Respondent
Jose
Gonzales
acted
in his
capacity
as a
corporate
representative of
Respondent
1601-1759
East
13
0
th
Street,
LLC.
He
maintained
access
to the
property,
but
no
evidence
demonstrated
that
he
caused
or allowed
the
pollution,
that
he had
control
over the
pollution,
or that
he
controlled
the
premises
when
the
pollution
occurred.
$ç: People
v.
A.J Davinroy
Contractors,
249
Ill.App.3d
788,
793-96,
618
N.E.2d
1282,
1286-88
(
5
th
Dist.
1993)
29.
All
evidence
indicated
just
the opposite.
No
testimony
was
presented
regarding
the
individuals
present
when the
dumping
took
place.
However,
contrary
to the
evidence
presented
at
the
hearings,
the
Board
ruled
that
Mr. Gonzalez
was
in
control
of
the
Site when
the
CTA waste
dumping
took
place
and had
the
capability
of controlling
the pollution
and
that
Mr.
Gonzalez
allowed
the
dumping
of
the
CTA waste.
:
March
19,
2009
Order,
p.
25.
This ruling
by the
Board
is
arbitrary
and
capricious,
not
supported
by any
evidence,
and therefore
is
against
the manifest
weight
of the
evidence.
30.
The Board’s
ruling
contains
other
errors
such
as
the discussion of Respondents’
August
6, 2007
Motions
to
Dismiss.
:
March
19, 2009
Order,
pp.
7-9.
On
that date
Respondents
filed
Post Hearing
Briefs.
Contrary
to the
Order, Respondent
Speedy
Gonzalez
Landscaping, Inc.’s Post
Hearing
Brief
specifically
lists,
at
paragraph
7,
the false
allegations made by
CDOE,
including
salt
unloading,
asbestos,
waste
next
to
residential
homes
and oil
flowing
into
sewers.
These false
claims
indicate
reprisal
as
a
result
of Respondent
Gonzalez’s
failure
to
pay
Macial
the bribe
he demanded.
VI.
Discovery
Violations
Resulted
in Due
Process
Violations
31.
The Board’s
March
19,
2009,
Order,
at
page
9,
dismisses
Respondents
claims
of
discovery
abuse
as
“harmless.”
Respondents
contend
those
omissions,
constitute a denial
of
procedural
due process.
Respondents
had
issued
subpoenas
to
all
Complainant’s
witnesses
for
depositions
as
well
as
for the
hearing.
Respondents subpoenas
were
ignored.
The investigator
in this
case,
Rafael
Maciel,
testified
that certain
information
was
transcribed
into
“field
notes”.
Counsel
for
Complainant
was
not
informed
of
the
existence
of
these
notes.
AC
06-3 9,
May
9,2007,
Tr.
5 8-9.
Mr.
Maciel
testified
that
Edward
Collins
“took
the information down”.
32. On
May
1, 2007,
Mr.
Maciel,
Mr.
Collins
and
all
other
witnesses
were issued
subpoenas
for
documents
for the
hearing.
The
subpoenas
sought
“any
and
all
documents
related”
to
the cases.
The
“field
notes”
referenced
by Mr.
Maciel
were
never
produced
in
discovery
or pursuant
to the
subpoenas.
Nor
were
the business
cards
collected from
individuals
at
the site
ever
produced
pursuant
to
the
subpoena.
AC
06-3
9, May
9,
2007,
Tr.
53-4.
Complainants
therefore
selectively
withheld
documents
sought
pursuant
to subpoena.
Although
counsel
for
Complainant
has
a continuing
duty
to
provide
discovery,
the
material
was
never
produced.
The
business
cards
collected
by
Macial
would
have
provided
the
identity
ofwitnesses
who
would
have
substantiated
Respondent
Gonzalez’s claim
that
Macial
had
sought
a
bribe.
$ç:
March
19,
2009,
Order
p.9,
holding
that
claim
of
bribery
solicitation
unsubstantiated.
Complainants
selectively
withheld
documents
sought
pursuant
to
subpoena.
Respondents objected
to the
introduction
of
Complainants
exhibits
as
they
were
not
complete.
The
Board
failed
to
penalize
Complainants
for
their
discovery
violations
and
accepted
Macials
testimony.
33.
Contempt
for
the
legal
process
was
also
demonstrated by
Mr.
Maciel’s
reference
to his
claimed
training
by
the
FBI
regarding
his
ability
to
tell
if someone
was
telling
a lie.
Mr.
Maciel
testified
that he
had
not
disclosed this
alleged
training
in his
deposition
testimony
because
“he only
gave
information
that
he
thought was
pertinent”.
AC
06-3 9,
Tr. 118.
Complainant’s
agent
admitted
that
he failed
to
give truthful
deposition
testimony
by determining
what
he
maintained
was
“pertinent”.
Respondents
were
therefore
precluded
an
opportunity
to
investigate
Maciel’
s
claim
and
properly
impeach
his
testimony.
34.
As
the
Board
did not
follow
discovery
requirements
and
the hearing
did
not
comport
to
established
rules
the
proceeding
violated
the
fundamental
due
process
rights
of
Respondents.
Respondents
were
treated
differently from Complainants
who
were
not
required
to follow
procedures
for the
hearing.
Finally,
there
is
no evidence
that the
costs imposed
were
reasonable.
VII.
Conclusion
35.
Respondents
contend
that
the action
by
the
Board
is
arbitrary
and capricious
and
against
the
manifest
weight
of
the
evidence.
Wherefore,
for
the above
and
forgoing
reasons,
Respondents
Jose
Gonzalez,
and
1601-1759
East
1
30
th
Street,
LLC,
pray
that this
Board
reconsider
and/or
modify
its final
order
and for
such
further
relief
as is just
and
equitable.
Dated:
July
8,
2009
Jeffrey
J.
Levine,
P.C.
#17295
20
North
Clark Street,
Suite
800
Chicago,
Illinois
60602
(312)
372-4600
Submitted,
effre
J. Levine,
P.C.
A
orn
for Respondents
Jose
nzalez,
and
1601-1759
East
130
th
Street,
LLC.