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Jose Gonzalez and 1601-1759 East 130th Street, L.L.C v. the Pollution Control Board

November 23, 2011

JOSE GONZALEZ AND 1601-1759 EAST 130TH STREET, L.L.C.,
PETITIONERS-APPELLANTS,
v.
THE POLLUTION CONTROL BOARD,
RESPONDENT-APPELLEE.



Petition for Review of the Orders of the Illinois Pollution Control Board. Nos. AC 06-39, AC 06-40, AC 06-41, AC 07-25

The opinion of the court was delivered by: Justice Cahill

JUSTICE CAHILL delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 Petitioners, Jose Gonzalez and 1601-1759 East 130th Street, L.L.C. (LLC), appeal the decision of the Illinois Pollution Control Board (Board) in favor of the City of Chicago department of environment (City). The Board found petitioners liable for causing or allowing the open dumping of waste in a manner resulting in litter, scavenging, open burning and the depositing of general construction of demolition debris in violation of sections 21(p)(1), (p)(2), (p)(3) and (p)(7)(i) of the Environmental Protection Act (Act) (415 ILCS 5/21(p)(1) through (p)(3), (p)(7)(i) (West 2006)). On appeal, petitioners contend that: (1) the evidence presented was inadequate to sustain the Board's findings that they violated the Act; (2) Gonzalez cannot be held liable for violations of the Act as a corporate agent; and (3) petitioners were denied due process of law at the administrative hearing. We affirm.

¶ 2 Based on a March 22, 2006, site inspection, the City issued three administrative citations (Nos. AC 06-39, AC 06-40, AC 06-41) to Speedy Gonzalez Landscaping, Inc. (SGLI), Gonzalez and the LLC, alleging they violated sections 21(p)(1), (p)(2), (p)(3), (p)(4), and (p)(7)(i) of the Act (415 ILCS 5/21(p)(1) through (p)(4), (p)(7)(i) (West 2006)).

¶ 3 On May 9, 2007, the Board set separate hearings for Nos. AC 06-39 and AC 06-40. At the No. AC 06-39 hearing, Rafael Maciel testified that he was a senior environmental engineer for the City. On March 22, 2006, Maciel and other City personnel were driving on 130th Street when they saw smoke and "flame" coming from the 1601 East 130th Street site (site). The site was fenced and the entrance gate was open. Maciel drove onto the site and saw landscaping materials, compost material, railroad ties, scrap metal, frayed wire and piles of construction and demolition debris.

¶ 4 Maciel also saw a water tanker with "Speedy Gonzalez Inc.," painted on the side, a dump truck bearing the name "E. King Hauling" and a front-end loader on the site. A second dump truck arrived later. The front-end loader was pushing material from the Chicago Transit Authority's (CTA) "Brown Line" renovation project toward a large pile of debris. Maciel saw a pile of wood and other material being burned and two people sorting materials. The workers walked away when Maciel approached. Maciel directed the dump trucks not to leave during the investigation, but the second truck left the site. One of the workers gave Maciel a waste manifest and told Maciel the City had hired him for the job and that he had "to listen to my boss *** whatever my boss man says." A waste manifest is a log describing the type of material being transported, who generated it, who the transporter is and where it will be disposed.

¶ 5 A white pickup truck drove up to Maciel, and he recognized the driver as "Jose 'Speedy' Gonzalez" because the City had previously issued citations to SGLI. Maciel asked Gonzalez whether he was running an illegal "transfer station" and from where the waste manifest had come. Gonzalez said he did not know what Maciel was talking about and that Maciel was on private property and had to leave. Gonzalez then rolled up the window of his pickup truck and drove away.

¶ 6 Maciel and Chris Antonopoulos prepared an investigation report a day or two after investigating the property. Over Gonzalez's objection, the investigation report, site sketch, photographs, site ownership information and a lab report about soil samples were admitted into evidence. Over the City's objection, the waste manifest was also admitted into evidence.

¶ 7 On cross-examination, Maciel testified that although he got business cards from the drivers, he did not include them in the report because it is not customary to do so. The report did not include the waste manifest and the field notes about the drivers and license plates of the vehicles.

¶ 8 Maciel could not tell whether the front-end loader was loading or unloading waste. He initially said at his deposition the trucks were being loaded with waste; at the hearing he said that, based on the waste manifest and discussions with the on-site workers, he believed the trucks were dumping on the site.

¶ 9 Maciel testified that Chuck Webber, a consultant to the CTA, told him that the CTA, subcontractor Paschen Construction and Gonzalez had a verbal agreement to store the material from the CTA construction project in roll-off boxes on the site over the weekend. E. King was hired to haul the CTA materials and it was to be kept on the site over the weekend until the landfill reopened on Monday. Webber could not confirm that the materials on the site came from the CTA project.

¶ 10 Maciel said that he had some doubt as to whether Webber was telling the truth about the agreement with the CTA but admitted that his investigation confirmed the agreement existed. Maciel said he had received FBI training on assessing whether a person is telling the truth, although he did not mention the training at his deposition. Maciel did not recall the name of the course, the name of the teacher or the address of the course.

ΒΆ 11 Maciel testified that he should have conducted a further investigation to determine whether other entities were involved in the violations. He had previously said to suspected violators, "[h]elp me help you out so you can avoid getting citations and you stay in compliance." He denied having said to Gonzalez, "[h]elp me help you avoid a citation" and said he had never taken a bribe. Maciel said that inspectors have some leeway to allow property owners to come into compliance if a violation is not "drastic" and ...


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