BEFORE
    THE ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    CITY
    OF
    CHICAGO
    DEPARTMENT
    )
    OF ENVIRONMENT,
    )
    )
    Site
    Code:0316485103
    Complainant,
    )
    )
    AC: 2006-039
    )
    AC: 2006-040
    )
    AC: 2006-041
    JOSE GONZALEZ
    & 1601-1759
    EAST
    )
    AC:
    2007-025 - Consolidated
    130TH
    STREET,
    LLC., INC., ET AL.
    )
    )
    Respondents.
    )
    NOTICE
    OF FILING
    TO: Mr.
    Bradley P. Halloran
    Ms. Jennifer
    A.
    Burke, Senior
    Counsel
    Illinois
    Pollution Control
    Board
    City of Chicago,
    Dept. of Environment
    100 West
    Randolph Street, Suite
    11-500
    30 North La
    Salle Street,
    9th
    Floor
    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
    Reply
    to
    City
    Chicago’s Response
    to Motion to Reconsider
    or
    Modify
    Final Order. Dated
    at Chicago, Illin i
    this
    13
    th
    day
    of
    August,
    2009.
    J
    F
    Y J. LEViNE, P.C.
    Atto
    y
    for Respondents
    Jose
    Gonzalez, 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
    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
    cuments
    to the
    person to whom
    said
    Notice
    is
    directed
    by
    hand delivery or
    U.S. Mail, this
    13
    th
    a of August, 2009.
    JEFF
    Y
    v.
    RECEIvED
    CLERics
    OFFICE
    AUG 13
    2009
    STATE
    OF
    ILLINQI5
    Pollution
    Control
    Board
    BEFORE THE
    ILLINOIS
    POLLUTION
    CONTROL BOARD
    CITY OF
    CHICAGO
    DEPARTMENT
    )
    OF ENVIRONMENT,
    )
    )
    Site Code:03
    16485103
    Complainant,
    )
    )
    AC: 2006-039
    v.
    )
    AC:
    2006-040
    )
    AC: 2006-04
    1
    JOSE
    GONZALEZ
    & 1601-1759
    EAST
    )
    AC:
    2007-025 - Consolidated
    130TH
    STREET, LLC.,
    INC., ET
    AL.
    )
    )
    Respondents.
    )
    REPLY
    TO CITY
    OF
    CHICAGO’S
    RESPONSE
    TO MOTION
    TO
    RECONSIDER
    OR
    MODIFY
    FINAL
    ORDER
    Now
    come Respondents
    Jose Gonzalez,
    and
    1601-1759 East
    13
    otti
    Street, LLC, by and
    through
    their attorney, Jeffrey
    J.
    Levine,
    P.C., and for their
    Reply
    to the
    City of
    Chicago’s
    Response
    to the Motion
    to Reconsider
    or
    Modify the June 4, 2009
    Final Order, state
    and assert as
    follows:
    1. The City of Chicago,
    in
    its
    Response to
    the Motion to Reconsider
    or Modify
    the June
    4,
    2009
    Final Order (“Response”),
    seeks
    to
    justify
    the judgment against
    Respondent Jose Gonzalez
    by
    mis-characterizing
    the facts and law. The
    site of the incident was
    owned
    by
    Respondent
    1601-1759
    EAST 1
    30
    T11
    STREET,
    LLC.,
    INC.,
    an Illinois corporation
    in
    good standing.
    No
    evidence
    presented
    at the hearing
    indicates
    that the
    site was owned
    by any
    other
    entity.
    Respondent
    Jose
    Gonzalez
    is
    a
    shareholder
    and agent ofthat
    corporation. Petitioner
    City of Chicago
    offered no evidence
    that would
    provide
    any valid basis
    for what
    amounts to
    the piercing of the Respondent
    corporation.
    2.
    Respondent
    Jose
    Gonzalez, as an agent
    for the
    Respondent
    Corporation
    appeared
    at the
    site subsequent
    to the occurrence
    of the dumping.
    Upon
    his
    arrival, he sought to
    supervise
    cleanup
    operations
    at the site. The evidence
    demonstrated
    that
    the City sought to
    stop
    cleanup
    work
    at the
    site,
    contrary
    to
    Mr. Gonzalez’s
    direction. The City
    twists these facts
    and argues at
    page 2
    of its
    Response
    that Mr. Gonzalez exercised “control over the site where the violations
    of the Act were
    observed...”
    In fact,
    no
    witness presented maintains that
    Mr. Gonzales was at the
    site
    or controlled
    the site when the pollution
    occurred.
    3. The City next argues, at page 3 of its Response, that Respondent 160
    1-1759 East
    130
    th
    Street, LLC., is liable for not promptly removing waste when the site
    was
    acquired
    in January of
    2005, and that said Respondent failed to prevent others from dumping on the site.
    $:
    Response
    at
    p.
    3.
    This argument is moot as the Board’s final Order did not hold
    Respondents responsible for fly
    dumped materials.
    4. The City’s Response, at page 4, demonstrates the inherent failure of its position. The
    City
    argues that; “A complainant must show that the alleged open dumper
    had
    control
    over
    the
    source or
    site of the pollution.” Initially, Respondents were not the alleged open dumper.
    5. The City argues that liability can attach if the open
    dumper had control over the source or
    site of where the pollution occurred. In this instance, the source of the pollution was
    the City’s
    Transportation Authority (CTA). The individuals who were the alleged
    open dumpers were the
    employees of the sub-contractors (E. King), working
    for the CTA’s Contractor (Paschen), working
    on the CTA’s Brown Line renovation.
    6. Mr. Gonzalez was not on site when the
    investigators first appeared and attempted
    to stop
    the
    clean-up
    work, he arrived soon thereafter and assumed control
    over the property for purposes
    of
    cleaning the
    site.
    No evidence was presented at the hearing that Respondent
    Jose Gonzalez was
    present
    or had
    any control over the site when the dumping
    by
    the City’s agents occurred.
    7. If Respondent Jose Gonzalez had control over the site when the sub-contractors
    started
    dumping
    the
    loads out of the containers, it would have stopped immediately.
    Respondent Jose
    Gonzalez came to the site and was directing the cleanup
    of the City’s waste. Respondent Jose
    Gonzalez neither caused
    nor allowed the dumping at the site and worked immediately to rectify the
    mistake made
    by
    the City’s agents. It is difficult if not impossible to explain what exactly
    Respondent Jose Gonzalez did
    wrong
    for the
    Board
    to
    punish. Both
    of
    the
    City’s
    investigators
    testified that individuals are allowed time to clean up property. No
    explanation
    was
    given as to
    why
    Mr. Gonzalez was not
    allowed time
    to
    clean the site and was ticketed for his
    actions cleaning up the
    City’s mess.
    8. The City argues,
    at pp.4.-5 of its Response that Mr.
    Gonzalez
    assumed
    responsibility for
    securing,
    maintaining, developing and renting
    the site. There is no evidence that he did not do so as
    an agent of the
    Respondent corporation.
    9.
    Further, as an agent
    and shareholder for Respondent 160 1-1759
    EAST
    130TH
    STREET,
    LLC., INC., an
    Illinois corporation, Respondent
    Gonzalez testified that he sought to secure the
    property from fly dumping,
    and develop the property. This plan is contrary to the causing
    or allowing
    debris
    to
    be dumped
    there. In this instance the property was neither
    the source nor site of the
    pollution.
    10. Finally, the City
    argues that it did nothing wrong in ignoring respondent’s
    valid discovery
    requests. $ç:
    Response
    pp.
    5-6.
    The City argues that the identity of on scene witnesses
    was
    not
    important as the Act does not
    require that the City “issue administrative citations to every possible
    respondent for every
    given occurrence.” The City then argues that its failure to provide the discovery
    was within its
    “prosecutorial discretion.”
    S:
    Response
    p.
    5. This argument is the height of
    arrogance.
    11. The
    City’s premise is that, the only purpose of
    providing discovery, was to issue citations.
    Respondents
    however, sought the identity of
    said on scene witnesses, in part, to
    substantiate
    Respondents claim of
    Investigator Macial’s attempts to
    solicit
    a
    bribe. These types of bribes are
    regularly sought
    by
    City
    employees. Already almost two dozen people have
    been
    charged in
    Operation Crooked Code, aj oint
    operation by
    federal authorities
    and the City Inspector. Respondents
    were denied the legitimately requested discovery, and then
    admonished by the Board for not offering
    conclusive proof that the
    bribe
    had
    occurred. :March 19, 2009 Order,
    p.
    9.
    12. The Board cannot fail to punish the City for discovery abuses and simultaneously, hold
    that Respondents failed to provide evidence regarding the bribe solicitation where the
    identity
    of
    witnesses may have demonstrated the bribe
    solicitation.
    All the witnesses who
    were
    not
    identified
    were
    involved
    in
    the cleanup effort and would have contradicted Inspector Macial’ s
    testimony relied
    upon
    by
    the Board in holding
    Respondents liable. Rather than cure the failure to provide discovery,
    upon
    realizing that Respondents subpoena’s were ignored,
    the City’s attorneys have now continued
    the
    deception by failing to correct the wrong and arguing that its failure to provide
    the discovery was
    within
    its “prosecutorial discretion.” $:
    Response
    p.
    5. Counsel for Complainant have failed to
    comply with their
    continuing duty to provide discovery.
    13.
    City counsel further seeks to avert
    blame
    for
    their clients failure to respond to the
    discovery
    arguing that Respondents were
    given ample opportunity to cross examine Complainant’s
    witnesses.
    Said counsel apparently argues that rather than
    having
    an
    ethical obligation to respond
    to
    discovery, it was Respondent’s obligation to obtain the testimony of
    unknown individuals whose
    business
    cards were collected and maintained by the City inspectors.
    14. The City
    concludes that it is not required to comply with discovery as long as
    Respondents are
    allowed
    to
    cross examine the witnesses it presents. The City contends
    that this
    renders all due process
    concerns moot. Illinois
    allows relaxed discovery rules for administrative
    hearings.
    However, in this instance,
    liability was imposed after a hearing that provides
    for discovery.
    The
    Boards
    Order determined that the
    failure
    to comply
    therewith, to be harmless
    error. The City
    relies
    on Mahonie v.
    Edgar, 131 Ill.App.3d
    175,
    476 N.E.2d
    474
    (1St
    Dist. 1985).
    In Mahonie,
    plaintiff argued
    that hearsay was allowed
    in her
    hearing where no
    objection
    was made as
    to its
    introduction.
    That is not the
    case
    in
    this
    instance.
    Respondents legitimately
    sought the
    discovery and
    sought sanctions
    when
    the material
    was not provided.
    15. The Board cannot
    conclude that
    the discovery omissions
    were harmless
    without knowing
    what
    information was withheld.
    Such a
    conclusion is arbitrary
    and capricious and
    demonstrates an
    impartiality
    in ruling.
    Wherefore,
    for the above and
    forgoing reasons,
    Respondents
    Jose
    Gonzalez,
    and 1601-
    1759
    East 1
    th
    30
    Street, LLC,
    pray that this
    Board
    reconsider
    and/or modify
    its final
    Order
    and for
    such further
    relief as is just and
    equitable.
    Dated:
    August
    13, 2009
    Jeffrey J. Levine,
    P.C. #17295
    20
    North
    Clark Street, Suite
    800
    Chicago,
    Illinois
    60602
    (312)
    372-4600
    Submitted,
    and
    1601-1759
    East
    130
    th
    Street,
    LLC.

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