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11/01/95 PEOPLE STATE ILLINOIS v. DALE GAWLAK

November 1, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DALE GAWLAK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Ronald A. Himel, Judge Presiding.

Released for Publication December 21, 1995.

The Honorable Justice Tully delivered the opinion of the court: Rizzi and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

After a bench trial, defendant, Dale Gawlak, was found guilty of making a false material statement concerning hazardous waste in violation of section 44(h)(2) of the Environmental Protection Act (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1044(h)(2) (now 415 ILCS 5/44(h)(2) (West 1994))), unlawful destruction of a hazardous waste record in violation of section 44(h)(3) of the Environmental Protection Act (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1044(h)(3) (now 415 ILCS 5/44(h)(3) (West 1994))) and forgery in violation of section 17-3(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 17-3(a)(1) (now 720 ILCS 5/17-3(a)(1) (West 1994))) and sentenced to 1 year's probation. It is from the judgment of conviction entered by the circuit court that defendant now appeals to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 603 (134 Ill. 2d R. 603).

For the reasons which follow, we affirm in part and reverse in part.

FACTUAL BACKGROUND

The facts in this case are undisputed. In February 1991, defendant worked as a materials handling supervisor for Chemical Waste Management, Inc. (CWM) at its plant at the intersection of Stony Island Avenue and 117th Street in Chicago. Defendant's duties included overseeing the movement and inventory of containers of hazardous waste that were sent to the Stony Island plant for incineration. The plant incinerated both hazardous and non-hazardous waste from other companies, as well as waste created by the plant itself.

In February of 1991, there had been an explosion in the kiln of the incinerator at the Stony Island plant which rendered it inoperable, with the exception of periodic tests. As a consequence of the explosion, CWM entered into a consent decree with the Illinois Environmental Protection Agency (IEPA) calling for on-site monitoring.

The consent decree between CWM and IEPA provided for a reduction in the amount of stored hazardous waste at the plant. It provided that there should not be more than 55,000 gallons of hazardous waste at any given time, in anticipation of the waste being incinerated. Prior to the consent decree, CWM had been permitted to keep up to 136,000 gallons of hazardous waste stored on-site.

Pursuant to the Environmental Protection Act (hereinafter Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1001 et seq. (now 415 ILCS 5/1 et seq. (West 1994))), IEPA promulgated regulations which allow hazardous waste created on-site to be kept on-site for up to 90 days before it is considered "stored" and thus counted toward the limited amount of hazardous waste a disposal site may lawfully store on-site in anticipation of disposal. In other words, prior to 90 days, such waste created on-site in the process of disposing of other waste brought into the plant from outside sources does not go "on the books" as inventory.

To determine how long hazardous waste has been on-site, stickers detailing the accumulation date, the date the barrel first received waste and the date on which the waste is either shipped to the storage facility or generated at the storage facility are attached to each barrel of waste. The stickers also identify the contents of the barrels.

To determine how much waste was on-site at any one time, CWM took inventory on theoretical, rather than actual, volume. After the entering of the consent decree, CWM ordered defendant and other employees to count the number of barrels on-site and multiply them by their capacity. Previously, defendant and others would determine inventory by opening each container to check the actual volume of the hazardous waste contained.

In September of 1991, CWM wanted the site to have less than 55,000 gallons of waste on-site, and it attempted to reduce the amount of waste on hand. Initially, the desired reduction was accomplished by shipping some of the barrels from the Stony Island plant to other disposal sites run by CWM, or by burning the waste in the incinerator. By August of 1991, neither option was available as the other CWM plant could not take any more waste, and the on-site incinerator was ...


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