Gonzalez v. Pollution Control Board

ILLINOIS OFFICIAL REPORTS

Appellate Court

Gonzalez v. Pollution Control Board, 2011 IL App (1st) 093021

Appellate Court JOSE GONZALEZ and 1601-1759 EAST 130th STREET, L.L.C.,

Caption Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD,

Respondent-Appellee.

District & No. First District, Sixth Division

Docket No. 1-09-3021

Rule 23 Order filed September 30, 2011

Rule 23 Order

withdrawn November 9, 2011

Opinion filed November 23, 2011

Held The judgment of the Illinois Pollution Control Board finding petitioners

(Note: This syllabus in violation of sections 21(p)(2), (p)(3) and (p)(7)(i) of the Environmental

constitutes no part of Protection Act was affirmed.

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Petition for Review of the Orders of the Illinois Pollution Control Board,

Review Nos. AC-06-39, AC-06-40, AC-06-41, AC-07-25.

Judgment Confirmed.

Counsel on Jeffrey J. Levine, P.C., of Chicago, for petitioners.

Appeal

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and John P. Schmidt, Assistant Attorney General, of

counsel), for respondent Pollution Control Board.

Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth

Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant

Corporation Counsel, of counsel), for respondent City of Chicago.

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

Presiding Justice R. 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 or 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

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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.

¶ 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

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property owners to come into compliance if a violation is not “drastic” and could be cured

within a reasonable period. He was not interested in helping Gonzalez avoid a citation

because this was a “big offense.”

¶ 12 Maciel’s testimony at the No. AC 06-40 hearing was generally consistent with his

statements at the No. AC 06-39 hearing. Maciel said that a “lack of specificity” could be an

indicator as to whether or not someone is telling the truth, although at the No. AC 06-39

hearing he had said that vague answers are not necessarily an indication that someone is not

telling the truth.

¶ 13 Jose Gonzalez testified at the No. AC 06-39 hearing that he purchased the site in the

winter of 2005-06. The site was 10 minutes away from Gonzalez’s office and was “owned

in the form of an LLC, by [him] privately.” Gonzalez testified that he also owned SGLI but

it had no connection to the site.

¶ 14 At the time of purchase, Gonzalez was aware of a considerable amount of debris on the

property, including piles of used tires, rusted street signs and scrap metal. “Fly-dumping”

was a constant problem on the property. Gonzalez explained that fly-dumping occurs when

a trespasser takes waste materials onto another person’s property and deposits them there

without the owner’s permission.

¶ 15 Gonzalez testified he planned to invest about $15 million to develop the site and lease

space to the Ford Company. After the purchase, Gonzalez made improvements to the gate

several times, but fly-dumpers continued to gain access to the property through the front gate

by knocking it down, cutting the lock or pulling the gate off its hinges. Gonzalez did not

begin cleaning the property until the snow started melting in 2006 because much of the waste

was frozen. Some of the waste remained on the site on March 22, 2006.

¶ 16 Gonzalez testified he made an agreement with E. King Hauling to store the CTA waste

in dumpsters or trucks until it could be taken to a nearby landfill. E. King was to pay

Gonzalez $500 per night for using the site. Gonzalez gave E. King a key to the lock on the

site’s gate. On March 20, 2006, Gonzalez was informed that the gate was open. He went to

the site and saw between 1,000 to 1,500 yards of debris from the CTA project deposited on

the ground. He called the owner of E. King, who promised to clean up the debris that had

been dumped on the property.

¶ 17 On March 22, 2006, Gonzalez saw Maciel when the front-end loader and trucks were

loading and hauling material off the site. Workers on the site were picking out certain

materials from the loads because otherwise the nearby landfill would not take them. Maciel

told Gonzalez he was going to tow the trucks, but Gonzalez directed the workers to keep

loading waste. Maciel told Gonzalez, “we are going to write you a ticket for everything that

I could write you a ticket on,” so that Gonzalez would “never [get] work from CTA ever

again.”

¶ 18 Gonzalez believed Maciel specifically targeted him. He testified that Maciel requested

a bribe sometime before March 22, 2006, when Maciel approached him and said, “[w]e can

work things out.” Gonzalez told him to “just do [his] job” and leave, and Maciel responded,

“[y]ou’ll pay for this.” Gonzalez also claimed that in previous cases, the City had given him

time to correct the alleged violations, but he was not given that opportunity by Maciel.

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¶ 19 Gonzalez’s testimony at the No. AC 06-40 hearing was consistent with his testimony at

the No. AC 06-39 hearing. At the No. AC 06-40 Gonzalez testified that he had spent

approximately $30,000 to clean up the fly-dumped waste, funded by SGLI.

¶ 20 Inspector Chris Antonopoulos testified at the No. AC 06-40 hearing that he assisted

Maciel in his investigation of the 1601 East 130th Street site on March 22, 2006.

Antonopoulos photographed and documented the locations of the multiple waste piles on the

site, containing scrap metal, PVC piping, tires, street signs, big chunks of concrete and

general construction and demolition debris. Antonopoulos did not take photographs of the

E. King trucks or the Paschen representatives.

¶ 21 Some of the waste piles indicated “classic fly-dumping.” Antonopoulos found wire with

the insulation partially removed, which was evidence of scavenging. He believed that the

workers on the site were loading waste onto the trucks, including the E. King truck that left

during the investigation, and cleaning the property. He did not know how the piles of

material came to the site or whether the CTA material was actually from the CTA.

¶ 22 Antonopoulos believed that Maciel did a competent investigation on March 22, 2006, and

Maciel’s opinions about Gonzalez had no effect on the investigation. Antonopoulos said that

an inspector’s offer to “work things out” would mean the inspector would try to work with

the person, not that he was soliciting a bribe. Antonopoulos also said that it was up to the

inspector to determine whether owners should be given time to remove waste from their

property, but it is not the City’s policy or a common practice.

¶ 23 On May 17, 2007, the Board set a hearing for No. AC 06-41. The parties stipulated to the

incorporation of Maciel’s and Antonopoulos’s testimony at the No. AC 06-40 hearing into

the No. AC 06-41 hearing transcript. Gonzalez testified at the No. AC 06-41 hearing

consistently with his statements at the Nos. AC 06-39 and AC 06-40 hearings.

¶ 24 On March 19, 2009, the Board issued its “Interim Opinion and Order.” City of Chicago

Department of Environment v. Speedy Gonzalez Landscaping, Inc., Ill. Pollution Control Bd.

Op. 06-39 (Mar. 19, 2009). The Board consolidated Nos. AC 06-39, AC 06-40, AC 06-41

and another citation proceeding, No. AC 07-25. No. AC 07-25 was issued to the LLC based

on an October 3, 2006, site inspection. No. AC 07-25 was dismissed as improperly issued

and is not at issue on appeal.

¶ 25 In its opinion, the Board first addressed a motion to dismiss filed by petitioners alleging

City misconduct, including: solicitation of a bribe; false allegations; inadequate investigation;

selective prosecution; selective responses in deposition testimony and failure to provide

subpoenaed documents; and false testimony.

¶ 26 The Board denied petitioner’s motion to dismiss, finding: (1) the evidence relating to

Maciel’s attempt to solicit a bribe was “inconclusive” and “unsubstantiated”; (2) petitioners

failed to identify the allegedly false allegations; (3) the selective prosecution claim failed

because it is within the City’s discretion to decide to whom it issues administrative citations;

(4) the alleged discovery omissions were harmless; and (5) the allegedly false testimony of

Maciel was “merely in the nature of clarification and amplification” and petitioners suffered

no material prejudice.

¶ 27 In addressing the merits, the Board first found that petitioners had allowed the open

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dumping of the CTA and fly-dumped waste in violation of section 21(a) of the Act (415

ILCS 5/21(a) (West 2006)) because petitioners were in control of the site and failed to take

reasonable precautions against the dumping of the waste.

¶ 28 Next, the Board found that petitioners: (1) violated section 21(p)(1) of the Act (415 ILCS

5/21(p)(1) (West 2006)) by allowing the open dumping of waste in a manner resulting in

litter; (2) violated section 21(p)(2) of the Act (415 ILCS 5/21(p)(2) (West 2006)) by allowing

the open dumping of waste in a manner resulting in scavenging; (3) violated section 21(p)(3)

of the Act (415 ILCS 5/21(p)(3) (West 2006)) by allowing the open dumping of waste in a

manner resulting in open burning; and (4) violated section 21(p)(7)(i) of the Act (415 ILCS

5/21(p)(7)(i) (West 2006)) by allowing the open dumping of waste in a manner resulting in

the depositing of general construction or demolition debris.

¶ 29 The Board also found that: (1) the City failed to prove SGLI liable for a violation of the

Act; (2) petitioners were not liable for fly-dumped waste deposited after they installed the

locked gate; and (3) petitioners did not violate section 21(p)(4) of the Act (415 ILCS

5/21(p)(4) (West 2006)) because the open dumping did not result in the depositing of waste

in standing water. The Board imposed civil penalties and hearing costs totaling $7,340.40

against Gonzalez and $7,189.40 against the LLC. Petitioners appeal.

¶ 30 The City contends in its brief that this appeal should be dismissed because petitioners

have failed to comply with Supreme Court Rule 342(a) (Ill. S. Ct. R. 342(a) (eff. Jan. 1,

2005)) by omitting an appendix, petition of review and table of contents of the record. The

City also contends that petitioners’ statement of facts fails to comply with Supreme Court

Rule 341(h)(6) (Ill. S. Ct. R. 341(h)(6) (eff. July 1, 2008)) by referring without citation to the

record and by including an argumentative statement of facts. We decline to dismiss this

appeal as we find the briefs and record sufficient to render a decision on the merits.

¶ 31 Petitioners first contend that the evidence presented was inadequate to sustain the

Board’s findings that they violated the Act. Specifically, petitioners contend that the City

failed to show that they caused or allowed opening dumping on their property under section

21(a) of the Act (415 ILCS 5/21(a) (West 2006)).

¶ 32 Judicial review of administrative law decisions extends to “all questions of law and fact

presented by the entire record.” Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 272,

917 N.E.2d 899 (2009). The Board’s findings of fact will be upheld unless they are against

the manifest weight of the evidence. Peoria Disposal Co. v. Illinois Pollution Control Board,

385 Ill. App. 3d 781, 793, 896 N.E.2d 460 (2008). A decision is against the manifest weight

of the evidence only if “the opposite conclusion is clearly evident.” Roti v. LTD

Commodities, 355 Ill. App. 3d 1039, 1051, 823 N.E.2d 636 (2005).

¶ 33 To prove a violation under section 21(p) of the Act, the City must show a person

“cause[s] or allow[s] the open dumping of any waste.” 415 ILCS 5/21(a), (p) (West 2006).

While knowledge is not an element of a violation of section 21(a) of the Act, the State “must

show that the alleged polluter has the capability of control over the pollution or that the

alleged polluter was in control of the premises where the pollution occurred.” People v. A.J.

Davinroy Contractors, 249 Ill. App. 3d 788, 793, 618 N.E.2d 1282 (1993). Property owners

are responsible for the pollution on their land unless the facts establish the owners either

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“lacked the capability to control the source” or “had undertaken extensive precautions to

prevent vandalism or other intervening causes.” Perkinson v. Pollution Control Board, 187

Ill. App. 3d 689, 695, 543 N.E.2d 901 (1989).

¶ 34 The Board’s finding that Gonzalez and the LLC caused or allowed the open dumping of

the preexisting fly-dumped waste and the CTA waste was not against the manifest weight

of the evidence. The evidence shows that the LLC purchased the site in January 2005, and

the site was “owned in the form of an LLC, by [Gonzalez] privately.” Petitioners were aware

of the preexisting fly-dumped waste at the time of the purchase but failed to remove it for

over 14 months. Gonzalez built a fence around the property and an entrance gate. Petitioners

made a voluntary agreement with E. King Hauling to store CTA waste in dumpsters or trucks

for $500 per night and gave E. King a key to the lock on the site’s gate. Gonzalez was present

on the site and monitoring the cleanup during the March 22 investigation. The evidence

shows that petitioners were in control “of the premises where the pollution occurred.” A.J.

Davinroy Contractors, 249 Ill. App. 3d at 793.

¶ 35 In addition, petitioners provided little evidence to show that they took “extensive

precautions” to prevent the pollution of the CTA waste. See Perkinson, 187 Ill. App. 3d at

695 (finding the owner and operator of swine farm was liable for discharge of liquid swine

waste into a stream because the pollution source was on the owner’s land, the waste facility

was under his control and there was no evidence showing that the owner had taken

precautions against vandalism). As noted by the Board, Gonzalez’s office was 10 minutes

from the site and petitioners could have sent a representative to monitor E. King’s activities.

¶ 36 Petitioners’ reliance on Phillips Petroleum Co. v. Pollution Control Board, 72 Ill. App.

3d 217, 390 N.E.2d 620 (1979), is misplaced. The court there held that the evidence was

insufficient to show that the owner of a tank car of anhydrous ammonia had sufficient

capacity to control the pollution because the car was under the sole control of the

transporting railroad when it was punctured in a derailment and released poisonous gas into

the air. Phillips Petroleum, 72 Ill. App. 3d at 220. In contrast, here the evidence shows

petitioners were in control of the site and did not lack the capability of controlling the

pollution.

¶ 37 Petitioners argue that Maciel solicited a bribe from Gonzalez and retaliated against him

when he refused to pay but provide little evidence in support of the argument. We agree with

the Board that the evidence was inconclusive and unsubstantiated and note that this issue has

no bearing on petitioner’s liability. The Board’s finding that Gonzalez and the LLC caused

or allowed the open dumping was not against the manifest weight of the evidence.

¶ 38 Petitioners next contend that Gonzalez cannot be held liable for violations of the Act

because he is a corporate agent. We agree with the Board that the issue was forfeited because

Gonzalez raised it for the first time in his motion for reconsideration. See Holzer v. Motorola

Lighting, Inc., 295 Ill. App. 3d 963, 978, 693 N.E.2d 446 (1998) (a new legal theory may not

be raised for the first time in a motion to reconsider).

¶ 39 Even assuming the issue was not forfeited, Gonzalez would still be liable because he

personally owned the LLC, paid the cleanup fees with SGLI’s account, made an agreement

with E. King, gave E. King the key to the site and was supervising the site cleanup on March

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22, 2006. See People ex rel. Ryan v. Agpro, Inc., 345 Ill. App. 3d 1011, 1028-29, 803 N.E.2d

1007 (2004) (corporate officer was held liable for his personal involvement or active

participation in a violation of Environmental Protection Act, where the officer personally ran

company’s operations at the polluted site, spent a great deal of time at the site, directly

supervised his employees and personally applied fertilizer and pesticides to farm fields).

¶ 40 Finally, petitioners contend that they were denied due process based on: the City’s

selective prosecution of petitioners; the City’s false allegations; the City’s failure to provide

field notes and business cards of the identity of additional witnesses in response to a

subpoena; Maciel’s false testimony about his FBI training; and Maciel’s inconsistent

testimony about whether he believed the trucks were loading or unloading waste on the site.

¶ 41 The City contends that petitioners have waived their due process argument. Ordinarily,

a constitutional issue is forfeited if it is not raised before an administrative agency, even

when the agency lacks the authority to decide it. Board of Education, Joliet Township High

School District No. 204 v. Board of Education, Lincoln Way Community High School

District No. 210, 231 Ill. 2d 184, 205, 897 N.E.2d 756 (2008). But, we may still review such

an issue even if it has been waived. Carpetland U.S.A., Inc. v. Illinois Department of

Employment Security, 201 Ill. 2d 351, 397, 776 N.E.2d 166 (2002).

¶ 42 An administrative hearing comports with due process where the parties are given the

opportunity to be heard, the right to cross-examine adverse witnesses and an impartial ruling

based on the evidence. Abrahamson v. Illinois Department of Professional Regulation, 153

Ill. 2d 76, 95, 606 N.E.2d 1111 (1992). A court will find a due process violation only if there

is a showing of prejudice. Sudzus v. Department of Employment Security, 393 Ill. App. 3d

814, 824, 914 N.E.2d 208 (2009).

¶ 43 Here, petitioners were given a full opportunity to challenge the evidence against them,

present evidence and cross-examine the witnesses. Petitioners were not prejudiced by the

City’s failure to produce Maciel’s filed notes and business cards. As noted by the Board, the

City turned over customary documents for administrative citation proceedings, and the

inspection report and other evidence presented at trial were sufficient for petitioners to

challenge the citations. We believe petitioners’ argument that the filed notes would have

contained exculpatory evidence is speculative and unpersuasive.

¶ 44 Maciel’s inconsistent testimony about his FBI training was irrelevant to the primary

issues in this case. Maciel’s belief about whether the trucks were loading or unloading waste

had no effect on petitioners’ liability because the Board found the CTA waste had been

dumped on the site and other waste was present long after petitioners acquired the site.

Petitioners were also not deprived of due process due to the City’s alleged selective

prosecution because it is within the discretion of the prosecutor to initiate actions for

violating the Act. See 415 ILCS 5/42(e) (West 2006); People v. NL Industries, 152 Ill. 2d 82,

101-02, 604 N.E.2d 349 (1992). Petitioners were not denied due process of law at the

hearing.

¶ 45 The decision of the Illinois Pollution Control Board is confirmed.

¶ 46 Confirmed.

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