ILLINOIS POLLUTION CONTROL BOARD
August 7, 2008
UNITED CITY OF YORKVILLE, a municipal
corporation,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
Respondents.
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PCB 08-95
(Third-Party Appeal - Land)
OPINION AND ORDER OF THE BOARD (by T.E. Johnson):
Today the Board grants two motions to dismiss this appeal based on the Board’s lack of
jurisdiction. On June 4, 2008, United City of Yorkville (Yorkville) filed a third-party petition
asking the Board to review a May 1, 2008 determination of the Illinois Environmental Protection
Agency (Agency). In the determination, the Agency, in response to the request of Hamman
Farms (Hamman), allows Hamman to apply landscape waste to its fields in Kendall County at a
rate greater than otherwise permissible under the Environmental Protection Act (Act) (415 ILCS
5 (2006)).
On July 7, 2008, the Agency and Hamman filed separate motions to dismiss Yorkville’s
appeal. Yorkville filed separate responses opposing the motions on July 21, 2008. On July 30,
2008, Hamman filed a motion for leave to reply to Yorkville’s response, which the Board denies
as unnecessary.
See
35 Ill. Adm. Code 101.500(e).
As described below, the Board grants the respective dismissal motions of the Agency and
Hamman because the Board lacks jurisdiction under the Act to hear this case. The Board
therefore dismisses this appeal and closes the docket. In this opinion and order, the Board first
describes Yorkville’s petition and the Agency’s determination. The Board then discusses the
motions to dismiss of the Agency and Hamman and the responses of Yorkville before ruling on
the motions.
BACKGROUND
Yorkville’s Third-Party Petition
The third-party petition (Pet.) states that Yorkville is located in Kendall County, and that
Hamman is a farming operation located in and near Yorkville on 2,200 acres of land in Kendall
County. Pet. at 2, 3. According to Yorkville, Hamman has admitted to applying landscape
waste at rates greater than agronomic rates without a permit, and Yorkville residents have
2
complained of a “strong and offensive odor” coming from Hamman’s fields since it began
applying landscape waste in the early 1990’s.
Id
. at 4. Yorkville represents that it has
complained to the Agency about Hamman’s application of landscape waste.
Id
.
Yorkville asks the Board to review the Agency’s May 1, 2008 approval of Hamman’s
request to “raise the agronomic rate.” Pet. at 2. According to Yorkville, Hamman, on April 10,
2008, applied for “permission to apply landscape waste at rates greater than the agronomic rate
of twenty (20) tons per acre per year.”
Id
. This application, continues Yorkville, included
various documents and was followed by a “supplemental application” from Hamman on April
16, 2008.
Id
. Yorkville states that the Agency’s determination allows Hamman to “apply
landscape waste at rates up to eighty (80) tons per acre per year and includes several conditions.”
Id
.
Yorkville appeals on the grounds that the Agency’s review of Hamman’s application
was:
deficient and failed to utilize the investigation necessary to evaluate whether
Hamman’s soil characteristics or crop needs required the application of greater
amounts of landscape waste. Consequently, the Agency’s Decision is erroneous
and must be reversed. Pet. at 2.
Further, Yorkville maintains the Agency’s conditions included in the determination are
“completely unworkable and inadequate to protect the environment and ensure Hamman’s
compliance.”
Id
. at 3.
Citing Section 5(d) of the Act (415 ILCS 5/5(d) (2006)), Yorkville argues that the Board
has the authority to review the Agency’s determination because it is “a final determination made
pursuant to 21(q) of the Act” and was “made in violation of the Act and was not based on
Hamman’s soil characteristics or crop needs.” Pet. at 4.
The Agency’s Determination
Attached to Yorkville’s petition is the Agency’s May 1, 2008 determination (Ag. Det.).
The determination was issued to Hamman in response to Hamman’s request for “an increase to
the agronomic rate for application of landscape waste to the fields of Hamman Farms in
accordance with Section 21(q).” Ag. Det. at 1. The Agency states that based upon the
information submitted by Hamman, the Agency “is allowing an application rate of no more than
80 tons/acre per year of landscape waste at Hamman Farms, until December 31, 2011,” under
eight conditions which are set forth in the determination letter.
Id
. at 1-2.
The Agency determination also provides that if Hamman would like to continue with an
application rate of landscape waste “greater than 20 tons/acre per year, for calendar year 2012
and beyond,” Hamman must submit a “request to continue the use of the increased agronomic
rate by December 31, 2011.” Ag. Det. at 2. The determination letter then specifies the minimum
information that the request must contain.
Id
. at 2-3.
3
DISCUSSION
Agency’s Motion to Dismiss
The Agency moves the Board to dismiss Yorkville’s petition because Yorkville lacks
standing to bring, and the Board lacks jurisdiction to hear, the appeal. In its motion to dismiss
(Ag. Mot.), the Agency states that it determined on May 1, 2008, that “80 tons/acre per year was
the agronomic rate for application of landscape waste” at the Hamman facility. Ag. Mot. at 1.
According to the Agency, this determination “was made pursuant to Section 21(q)” of the Act,
and Yorkville “was not a party to this determination.”
Id
. Yorkville, the Agency continues,
therefore “filed this appeal as a third party.”
Id
.
The Agency asserts that any authority to file with the Board an appeal of an Agency
determination “must be derived originally from Section 40 of the Act [415 ILCS 5/40 (2006)].”
Ag. Mot. at 1-2. Under that Section, the Agency first points out that when the Agency denies or
conditionally grants a permit, it is only “
the applicant
” who can appeal the Agency
determination to the Board.
Id
. at 2, quoting 415 ILCS 5/40(a)(1) (2006) (emphasis added by
Agency). The Agency maintains that because Yorkville “is not the applicant,” Yorkville “lacks
standing under this provision to appeal.”
Id
. at 2.
The Agency acknowledges that Section 40 of the Act does provide for third-party appeals
“in several instances,” citing, among other provisions, 415 ILCS 5/40(c) (2006) concerning
permits for “new hazardous waste facilities” and 415 ILCS 5/40(d) (2006) concerning Clean Air
Act Permit Program (CAAPP) permits. Ag. Mot. at 2. The Agency emphasizes, however, that
“[a]ll of these situations involve the administration of federally delegated programs by Illinois
EPA.”
Id
. In contrast, continues the Agency, Section 21(q) “relates to landscape waste
composting, which is solely a State concern.”
Id
. Moreover, the Act’s explicit provision of
third-party appeal rights in other instances, but not here, precludes this appeal, according to the
Agency.
Id
.
The Agency argues that Yorkville “has not presented the Board with any basis to allow
the Board to conclude that it has jurisdiction to hear this matter.” Ag. Mot. at 2. The Agency
quotes the following from the Illinois Supreme Court’s 1978 decision in Landfill, Inc. v. IPCB:
If the Board were to become involved as the overseer of the Agency’s decision-
making process through evaluation of challenges to permits, it would become the
permit-granting authority, a function not delegated to the Board by the Act.
***
A third-party challenge to the allowance of a permit is dissimilar to a hearing
upon a permit applicant’s petition to review the Agency’s denial of a permit.
…[T]o permit challenges to the allowance of a permit before the Board
undermines the statutory framework.
Id
. at 2-3, quoting Landfill, Inc., 74 Ill. 2d
541, 387 N.E.2d 258, 264-65 (1978).
The Agency concludes that “[t]hese statements of long-standing law are no less applicable to the
case at hand.”
Id
. at 3.
4
Hamman’s Motion to Dismiss
Hamman filed a memorandum of law (Hamman Memo) simultaneously with the filing of
and in support of its motion to dismiss (Hamman Mot.). Hamman argues that the Board does not
have authority to hear Yorkville’s appeal because the Agency’s “technical determination of the
soil characteristics or crop needs of a farm” under Section 21(q) of the Act is not “a subject
which the Board is authorized to regulate” within the meaning of Section 5(d) of the Act.
Hamman Mot. at 2; Hamman Memo at 2-3, 7. Hamman further asserts that no statutory or
regulatory provision authorizes the Board to review the Agency’s findings here or reverse the
Agency’s “technical determination of the appropriate agronomic rate for the subject farm.”
Hamman Mot. at 2-3; Hamman Memo at 3-5, 7.
Hamman stresses that the Agency’s determination under Section 21(q) of the Act is not a
permit. Indeed, no permit is required to agronomically apply landscape waste, whether at the
“statutory default rate” of 20 tons per acre per year or a “higher rate . . . justified by a farm’s soil
characteristics or by the nutritional needs of its crops.” Hamman Memo at 5-6, citing 415 ILCS
5/21(q) (2006). Hamman nevertheless makes arguments similar to those of the Agency
concerning the unavailability of third-party permit appeal rights, citing Landfill, Inc., and adds
that:
there is a sound public policy reason for disallowing such challenges, inasmuch as
the Board could otherwise find itself deluged by hundreds, if not thousands, of
actions each year by third parties who are disgruntled about the granting of a
permit. Such a system would be unworkable and would place an undue burden on
State resources. Hamman Memo at 6.
Yorkville’s Responses to the Motions to Dismiss
Yorkville filed separate responses opposing the Agency’s motion to dismiss (Pet. Resp.
Ag. Mot.) and Hamman’s motion to dismiss (Pet. Resp. Hamman Mot.).
Response to Agency
Yorkville does not specifically address the Agency’s contentions concerning the
availability of third-party appeals under Section 40 of the Act. Yorkville reiterates the assertion
made in its petition (Pet. at 4) that Section 5(d) of the Act gives the Board jurisdiction to hear
Yorkville’s challenge to the Agency’s final determination under Section 21(q) of the Act (415
ILCS 5/5(d), 21(q) (2006)). Pet. Resp. Ag. Mot. at 1-2. Yorkville adds that the subject of
landscape waste is one the Board has authority to regulate under Section 22.33(b) of the Act (415
ILCS 5/22.33(b) (2006)).
Id
. at 2.
Yorkville alternatively argues that “granting the Agency unappealable authority to make
decisions, such as the one in this matter, is bad public policy and gives rise to the potential for
abuse.” Pet. Resp. Ag. Mot. at 2. Yorkville contends that the Agency made its determination to
allow Hamman to apply landscape waste at rates up to 80 tons per year based on only four soil
5
samples, even though “the Illinois Agronomy Handbook calls for at least 880 soil samples.”
Id.
at 3. Yorkville believes that “sound public policy requires the Board to have reviewing authority
over Agency decisions to prevent abuses of power such as the one at issue in this case.”
Id.
Response to Hamman
Yorkville argues that Hamman is “wrong” in concluding that the Agency’s determination
“does not involve a subject that the [Board] is authorized to regulate” within the meaning of
Section 5(d) of the Act (415 ILCS 5/5(d) (2006)). Pet. Resp. Hamman Mot. at 1. Yorkville
reminds that the determination was made under Section 21(q) of the Act, and that Section
22.33(b) specifically authorizes the Board to regulate landscape waste compost facilities (415
ILCS 5/21(q), 22.33(b) (2006)).
Id.
at 2.
Yorkville additionally urges that the Board has the technical expertise necessary to
review the Agency determination here. Pet. Resp. Hamman Mot. at 2-3. Finally, Yorkville
concludes its response to Hamman by reiterating the same public policy arguments it offered in
response to the Agency.
Id.
at 4.
Board Analysis and Ruling
The Agency determination allowing a greater rate of landscape waste application by
Hamman was made under Section 21(q) of the Act (415 ILCS 5/21(q) (2006)). Section 21(q)
states in part:
No person shall:
***
(q) Conduct a landscape waste composting operation without an Agency permit,
provided, however, that no permit shall be required for any person:
***
(2) applying landscape waste or composted landscape waste at agronomic
rates;
***
For the purposes of this subsection (q), “agronomic rates” means the application
of not more than 20 tons per acre per year, except that the Agency may allow a
higher rate for individual sites where the owner or operator has demonstrated to
the Agency that the site’s soil characteristics or crop needs require a higher rate.
415 ILCS 5/21(q) (2006).
Section 21(q) contains no provision for appealing an Agency determination issued in
response to a request to apply a “higher rate.” Yorkville, however, purports to bring its third-
party appeal pursuant to the Board’s authority under Section 5(d) of the Act, which provides in
its entirety:
The Board shall have authority to conduct proceedings upon complaints charging
violations of this Act, any rule or regulation adopted under this Act, any permit or
term or condition of a permit, or any Board order; upon administrative citations;
6
upon petitions for variances or adjusted standards; upon petitions for review of the
Agency’s final determinations on permit applications in accordance with Title X
of this Act; upon petitions to remove seals under Section 34 of this Act; and upon
other petitions for review of final determinations which are made pursuant to this
Act or Board rule and which involve a subject which the Board is authorized to
regulate. The Board may also conduct other proceedings as may be provided by
this Act or any other statute or rule. 415 ILCS 5/5(d) (2006).
Specifically, Yorkville relies on the Board’s authority to conduct proceedings upon “petitions for
review of final determinations which are made pursuant to this Act.” Pet. at 4. Yorkville also
relies on the Board’s authority to hear “complaints charging violations of the Act.”
Id
.
According to Yorkville, the Agency’s approval of Hamman’s request qualifies as a final
determination made both pursuant to Section 21(q) and in violation of the Act.
Id
.
The Board, as an administrative agency, is a “creature of statute,” and therefore has only
the authority given to it by its enabling act.
See
Granite City Div. of Nat. Steel Co. v. PCB, 155
Ill. 2d 149, 171, 613 N.E.2d 719, 729 (1993). The Board is accordingly “powerless to expand its
authority beyond that which the legislature has expressly granted to it.” McHenry County
Landfill, Inc. v. IEPA, 154 Ill. App. 3d 89, 95, 506 N.E.2d 372, 376 (2nd Dist. 1987);
see also
Bevis v. PCB, 289 Ill. App. 3d 432, 437, 681 N.E.2d 1096, 1099 (5th Dist. 1997) (“As the PCB
is an administrative agency and is created by statute, its authority is limited by its enabling
statute.”).
The Board agrees with Yorkville that the Agency’s approval here is a “final
determination[] made pursuant to this Act.” 415 ILCS 5/5(d) (2006). The Board need not
resolve the parties’ disagreement over whether the Agency’s determination “involve[s] a subject
which the Board is authorized to regulate.”
See id
.;
see also
415 ILCS 5/22.33 (2006), 35 Ill.
Adm. Code 830. Even if the Agency’s determination does involve such a subject, the Board
finds that the contested general language of Section 5(d) does not by itself authorize appeals by
third parties
.
It is well settled that if the Act does not expressly provide a third-party right to appeal a
final permit determination, the right does not exist.
See
Landfill, Inc., 74 Ill. 2d at 557-58, 387
N.E.2d at 264-65 (1978); Citizens Utilities Co. of Illinois v. PCB
, 265 Ill. App. 3d 773, 782, 639
N.E.2d 1306, 1312 (3rd Dist 1994);
see also
,
e.g.
, City of Waukegan v. IEPA and North Shore
Sanitary District, PCB 02-173, slip op. at 1 (May 2, 2002). Yorkville does not cite to any
provision of the Act explicitly providing third parties with the right to appeal Agency
determinations on requests for increased rates of landscape waste application. The Board finds
that as the right to bring a third-party appeal of a permit determination cannot be implied under
the Act, the Act’s silence here cannot give Yorkville the right to appeal this determination.
The Board’s finding is supported by its procedural rules concerning appeals of final
Agency determinations:
Section 105.204
Who May File a Petition for Review
7
a)
General.
If the Agency refuses to grant or grants with conditions a permit
under Section 39 of the Act, the applicant may petition for a hearing
before the Board to contest the decision of the Agency
. [415 ILCS
5/40(a)(1)] [italics denote statutory language]
***
f)
Other Agency Final Decisions. If the Agency’s final decision is to deny or
to conditionally grant or approve, the person who applied for or otherwise
requested the Agency decision, or the person to whom the Agency directs
its final decision, may petition the Board for review of the Agency’s final
decision. In addition, any third party authorized by law to appeal a final
decision of the Agency to the Board may file a petition for review with the
Clerk. 35 Ill. Adm. Code 105.204(a), (f) (underscoring added for
emphasis).
Yorkville, a “third party,” may appeal a final Agency determination only as “authorized
by law.”
Id
. This procedural provision codifies the established case law.
See
Landfill, Inc., 74
Ill. 2d at 557-58, 387 N.E.2d at 264-65; Citizens Utilities, 265 Ill. App. 3d at 782, 639 N.E.2d at
1312. Where final determinations are appealable by third parties under the Act, the General
Assembly has provided the right explicitly, and has articulated standing requirements.
See
,
e.g.
,
415 ILCS 5/40(b) (2006) (grant of Resource Conservation and Recovery Act (RCRA) permit for
hazardous waste disposal site); 415 ILCS 5/40(e) (2006) (National Pollutant Discharge
Elimination System (NPDES) permit determination); 415 ILCS 5/40.1(b) (2006) (pollution
control facility siting approval). The Act simply does not authorize Yorkville to bring a third-
party appeal of the Agency’s Section 21(q) determination.
See
Landfill, Inc., 74 Ill. 2d at 557-
58, 387 N.E.2d at 264, citing City Savings Assoc. v. International Guaranty & Insurance Co., 17
Ill. 2d 609, 612, 162 N.E.2d 345, 346 (1959) (the expression of one thing in a statute excludes
any other even in the absence of an explicit prohibition).
Yorkville’s public policy arguments concerning the benefits of allowing an appeal here
are not fruitfully made to the Board. As discussed in this opinion, the courts have made clear
that it is the General Assembly, not the Board, that has the authority to determine the extent of
the powers and duties of the Board and the Agency.
Finally, contrary to Yorkville’s claim, the Board cannot hear Yorkville’s petition as a
complaint charging the Agency with violating the Act in approving Hamman’s request. The
Illinois Supreme Court in Landfill, Inc.
found that the Act did not allow third parties to prosecute
the Agency’s alleged permitting violations before the Board. Rather, the court stated, the Act’s
enforcement provisions enable citizens to bring complaints against permittees and:
speak in terms of Agency investigation of violations. The focus must be upon
polluters who are in violation of the substantive provisions of the Act, since it
would be unreasonable to presume these provisions direct the Agency to
investigate its own compliance with permit-granting procedures.
***
The grant of a permit does not insulate violators of the Act or give them a license
to pollute; however, a citizen’s statutory remedy is a new complaint against the
8
polluter, not an action before the Board challenging the Agency’s performance of
its statutory duties in issuing a permit. Landfill, Inc., 74 Ill. 2d at 556, 560-61,
387 N.E.2d at 263, 265;
see also
Citizens Utilities, 265 Ill. App. 3d at 781, 639
N.E.2d at 1312.
1
CONCLUSION
For the reasons above, the Board finds that it cannot lawfully accept Yorkville’s appeal.
Specifically, the Board lacks jurisdiction to hear Yorkville’s third-party petition for review of the
Section 21(q) determination issued by the Agency to Hamman. The Board grants the motions to
dismiss filed by the Agency and Hamman, dismisses this appeal, and closes the docket.
Consequently, Hamman’s pending motions relating to discovery are denied as moot, and the
hearing scheduled for August 14 and 15, 2008, is cancelled.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above opinion and order on August 7, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
1
On the same date that it filed the third-party petition, Yorkville also filed a citizen enforcement
action against Hamman, which is pending.
See
United City of Yorkville v. Hamman Farms
,
PCB 08-96.
