BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT OF
ENVIRONMENT,
Complainant,
v.
SPEEDY GONZALEZ LANDSCAPING,
INC.,
JOSE R. GONZALEZ, & 1601-1759
EAST BOTH STREET, LLC.
Respondents.
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AC 06-39
AC 06-40
AC 06-41
AC 07-25
(Administrative Citation)
(Consolidated)
CITY OF CHICAGO'S RESPONSE TO RESPONDENTS'
MOTION
TO RECONSIDER OR MODIFY FINAL ORDER
Complainant, the City of Chicago Department of Environment ("CDOE"), hereby
submits the following as its Response to Respondents' July
8,2009, Motion to Reconsider or
Modify Final Order ("Respondents' Motion to Reconsider"). In support thereof, CDOE states as
follows:
INTRODUCTION
In ruling on a motion for reconsideration, the Illinois Pollution Control Board (the
"Board") considers factors including new evidence, or a change in the law, to determine whether
the
Board's decision was in error. 35 Ill. Adm. Code 101.902. The Board has repeatedly
observed that
"the intended purpose of a motion for reconsideration is to bring to the court's
attention newly discovered evidence which was not available at the time
of hearing, changes in
the law
or errors in the court's previous application of the existing law." Ameren Energy
Generating Co.
v. IEPA, PCB 09-21 (Mar. 19,2009) (citing Korogluyan v. Chicago Title
&
Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1992)); Dynegy Midwest
1
Electronic Filing - Received, Clerk's Office, July 23, 2009
Generation, Inc. v. IEPA, PCB 09-48 (Mar. 5,2009); Citizens Against Regional Landfill v.
County Board of Whiteside, PCB 93-156 (Mar. 11, 1993).
The Board concluded in its June 4,
2009, Final Opinion and Order ("Final Order") that
Respondents Jose
R. Gonzalez ("Mr. Gonzalez") and 1601-1759 East Both Street, LLC ("Both
LLC") violated Sections 21(p)(1), (p)(2), (p)(3), and (p)(7)(i) of the Illinois Environmental
Protection Act (the
"Act") (415 ILCS 5/21(p)(1), (p)(2), (p)(3), (p)(7)(i) (2006)) on March 22,
2006 at 1601 East Both Street in Chicago, Illinois (the "Site"). In the Respondents' Motion to
Reconsider, Respondents failed to present: 1) newly discovered evidence which was not
available at the time
of hearing; 2) changes in the law; or, 3) errors in the Board's application of
existing law. Furthermore, the Board's hearing and decision were in conformity with procedural
due process requirements. Therefore, the Board should deny Respondents' Motion
to
Reconsider and order Respondents to come into full and immediate compliance with the Final
Order.
ARGUMENT
A.
Respondents
130
th
LLC and Mr. Gonzalez Caused or Allowed the Violations on
March 22,
2006.
Respondents 130
th
LLC and Mr. Gonzalez both exercised sufficient control over the Site
where the violations
of the Act were observed that the Board properly held both Respondents
liable for the violations. Furthermore, having determined that there were violations
of the Act on
the Site on March 22,
2006, the Board also properly concluded that the violations did not result
from any
"uncontrollable circumstances" that would serve to alleviate Respondents' liability.
Although the Board previously considered and ruled on these issues,
CDOE will briefly restate
its position in order to correct inaccuracies in Respondents' Motion to Reconsider,
as well as to
highlight Respondents' statements that further support the Board's decision and Final
Order.
2
It
is uncontested that Respondent 130
th
LLC owned the Site on March 22, 2006. CompI.
Post-Hearing Br. at
1,4; see also Resp. Post-Hearing Br. at
~
1.
The Board has repeatedly held
that a landowner can be held liable for
"causing or allowing" open dumping even if the
landowner did not actively participate in the dumping.
See!EP A v. Shrum, AC 05-18 (IPCB
Mar.
16,2006); !EPA v. Carrico, AC 04-27 (IPCB Sep. 2, 2004); !EPA v. Rawe, AC 92-5 (IPCB
Oct. 16, 1992). Respondent claims that fly-dumpers and E. King dumped waste at the Site
without Respondent's permission and that there was waste on the Site when Respondent
purchased it. Resp. Post-Hearing Br. at
~
9. However, a person can cause or allow open
dumping in violation
of the Act without knowledge or intent. See County of Will v. Utilities
Unlimited, Inc., AC 97-41 (IPCB July 24, 1997), citing,
People v. Fiorini, 143 Ill. 2d 318, 574
N.E.2d 612 (1991). In addition,
"passive conduct" on the part of a landowner can amount to
"acquiescence sufficient to find a violation of Section 21(a) of the Act." !EPA v. Shrum, AC 05-
18 (IPCB Mar. 16,2006).
In addition to not preventing others from dumping waste on the Site, Respondent Both
LLC is liable for violating the Act by not promptly removing the waste located on the Site when
Respondent acquired it in January
2005. Respondent's counsel admits that "[w]hen
[Respondent] acquired the property is [sic] was loaded with junk" and that there were "tires,
signs and material. .. on the property when purchased." Resp. Post-Hearing Br. at
~~
1, 9. In
addition, Respondent's counsel admits that there was
"trash that was constantly being fly-
dumped" on the Site. Id. at
~
9. Therefore, Respondent Both LLC, as owner of the Site, is liable
for the violations observed on March 22,
2006 because Respondent Both LLC failed to prevent
others from dumping waste on the Site and failed to promptly address any dumping that did
occur.
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Electronic Filing - Received, Clerk's Office, July 23, 2009
Respondent's counsel admits that Respondent Mr. Gonzalez also "acquired an interest in
[the] property located at 1601-1759 East
Both Street." Resp. Post-Hearing Br. at
~
1. Even
though Respondent Mr. Gonzalez is not the owner
of record for the Site, the Board has held that
ownership
of property is not a prerequisite to violating Section 21 (p) of the Act. See IEP A v.
Cadwallader, AC
03-13 (IPCB May 20,2004); IEPA v. Pekarsky, AC 01-37 (IPCB Feb. 7,
2002). A complainant must show that the alleged open dumper had control over the source or
site
of pollution. Id. As set forth in CDOE's Post-Hearing Brief, Respondent Mr. Gonzalez had
extensive control over the movement oftrucks, people and materials onto and
off of the Site.
CompI. Post-Hearing Br. at 4-5. Despite Respondent's statement that "Mr. Gonzalez was not on
site when the investigators appeared" (Resp. Post-Hearing Br. at
~
3), CDOE presented
testimony and evidence that Respondent Mr. Gonzalez was on the Site on March 22,
2006 and
attempted to exercise control over the Site by asking the CDOE inspector to leave the property.
O'Donnell Tr. at 25; CompI. Ex. A at 6.
While attempting to argue that Respondent Mr. Gonzalez lacked sufficient control over
the Site to be liable under the Act, Respondent's counsel admits that Respondent Mr. Gonzalez
"repeatedly secured the property, put down a gravel road and was in the process of cleaning the
property for purposes of future development" at the time ofCDOE's March 22, 2006 inspection.
Resp.
Post-Hearing Br. at
~
34. Respondent's counsel also admits that "Mr. Gonzalez offered to
rent the land to E.
King" (Resp. Post-Hearing Br. at
~
12) - as established at hearing, E. King
dumped large quantities
of general construction and demolition debris on the Site. As these
admissions and the other evidence cited in CDOE's Post-Hearing Brief demonstrate, Respondent
Mr. Gonzalez clearly assumed the responsibility for securing, maintaining, developing, and
4
renting the Site - all of which demonstrate that Respondent had control over the source or site of
pollution and was properly found liable by the Board for violating the Act.
Respondents' various arguments present no new facts
or law. Further, the Board was
completely briefed on all the arguments presented
by Respondents' Motion to Reconsider during
the hearing and in the post-hearing filings. Respondents merely reargue issues already raised
and briefed prior to the
Board's Final Order because Respondents are presumably dissatisfied
with the Board's conclusions. The Board addressed each
of Respondents' arguments in its
detailed March
19,2009, Interim Opinion and Order and in its Final Order and there is no
justification to grant Respondents' Motion to Reconsider.
B.
Respondents Received A Fair Hearing Before The Board.
Respondents allege that they were denied procedural due process because, in response to
a subpoena requesting documents related to the case against Respondents,
CDOE did not give
Respondents
"field notes" or business cards specifying the identity of the truck drivers and other
employees
ofE. King Hauling or Paschen Construction that were on the Site on March 22,2006.
Resp. Motion to Reconsider at
~~
31-32; see also AC 06-39, May 9,2007, Tr. at 58-9 (CDOE
Inspector Maciel's statements regarding the identification of E. King Hauling and Paschen
Construction employees
on the Site on March 22,2006). As stated by the Board in its March 19,
2009, Interim Opinion and Order (at 9), "[t]he Act, by its terms, does not require that the
complainant issue administrative citations to every possible respondent for a given
occurrence"
and CDOE's issuance of administrative citations to particular parties is "within CDOE's
prosecutorial discretion." Therefore, CDOE's investigation regarding other possible respondents
on the Site on March 22,
2006 is simply not relevant with respect to 130
th
LLC and Mr.
Gonzalez's liability in the instant case before the Board.
5
Electronic Filing - Received, Clerk's Office, July 23, 2009
Even ifthere were field notes or business cards that were somehow responsive to
Respondents' subpoena, Respondents have failed to demonstrate that the alleged nondisclosure
of such materials prejudiced them or violated their procedural due process rights in any way.
Respondents speculate that the field notes or business cards would have allowed them to identify
witnesses on the
Site on March 22,2006 that could have testified on Respondents' behalf. Resp.
Motion to Reconsider at
~
32. Not only did the Board properly find that the Respondents were
granted multiple hearings to solicit cross-examination testimony about the March 22,
2006 site
inspection (since the four original cases were consolidated into one case post-hearing), but the
witnesses Respondents hoped to identify were the officers
or employees ofE. King Hauling and
Paschen Construction - the entities Respondents themselves contracted with to bring waste onto
Respondents' Site. Therefore, Respondents were given ample opportunity to cross-examine
adverse witnesses in conformity with due process requirements and were in the best position to
seek testimony from the officers
or employees of their business partners that were on the Site on
March 22,
2006.
In order to comport with procedural due process requirements, respondents before the
Board should receive
"the essential elements of a fair hearing before an administrative agency:
an opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in
ruling upon the evidence." Ardt v. Dept. ofProfl Regulation, 218
Ill.
App. 3d 61,69,578
N.E.2d 128, l33 (1
st
Dist. 1991) (holding,
inter alia,
that administrative hearing did not violate
plaintiff s due process rights despite the fact that defendant state agency did not respond to
plaintiffs interrogatories) (citing Mahonie v. Edgar, l31 Ill. App. 3d 175,476 N.E.2d 474 (1
st
Dist. 1985)). Consistent with this well-established holding and as the Board has already
6
Electronic Filing - Received, Clerk's Office, July 23, 2009
concluded, any alleged discovery omissions would have been harmless error and Respondents
received a fair hearing in accordance with due process.
CONCLUSION
Respondents have not presented any new evidence, law, or legal analysis to refute the
Board's conclusion that Respondents 130
th
LLC and Mr. Gonzalez violated Sections 21(p)(1),
(p)(2), (p)(3), and (p)(7)(i) of the Act. In addition, the Board provided Respondents a fair
hearing in conformity with procedural due process requirements. Therefore, the Board should
deny Respondents' Motion to Reconsider and order Respondents to come into full and
immediate compliance with the Final Order.
Dated: July 22, 2009
JENNIFER
A.
BURKE
Senior Counsel
GRAHAM
G. MCCAHAN
Assistant Corporation Counsel
City of Chicago Department of Law
Respectfully submitted,
CITY
OF CHICAGO
DEP ARTMENT OF ENVIRONMENT
Mara S. Georges,
Corporation Counse
Aviation, Environmental
&
Regulatory Division
30 N. LaSalle Street, Suite 900
Chicago, IL 60602
(312)
742-3990/744-1438
7
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF CHICAGO DEPARTMENT OF
ENVIRONMENT,
Complainant,
v.
SPEEDY GONZALEZ LANDSCAPING,
INC., JOSE R. GONZALEZ,
&
1601-1759
EAST 130
TH
STREET, LLC.
Respondents.
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)
)
)
)
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AC 06-39
AC
06-40
AC 06-41
AC 07-25
(Administrative Citation)
(Consolidated)
NOTICE OF FILING
TO: Mr. Jeffrey J. Levine
Jeffrey J. Levine, P.C.
20 N. Clark St., Suite 800
Chicago, IL 60602
Mr. Bradley P. Halloran
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
PLEASE
TAKE NOTICE that on July 22,2009, Complainant filed with the Clerk of the
Illinois Pollution Control Board the attached CITY
OF CHICAGO'S RESPONSE TO
RESPONDENTS' MOTION TO RECONSIDER OR MODIFY FINAL ORDER, a copy
of which is served upon you.
Graham
G. McCahan
Assistant Corporation Counsel
City
of Chicago Department of Law
Graham G. McCahan
Aviation, Environmental
&
Regulatory Division
30 N. LaSalle Street, Suite 900
Chicago, IL 60602
(312) 744-1438
CERTIFICATE OF SERVICE
The undersigned, an attorney, certifies that on July 22,2009, he caused copies of this
notice and the documents referenced therein to
be served on the persons listed above by
U.S. Mail, first class postage prepaid.
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