BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, a
municipal corporation,
Petitioner,
)
)
)
)
v.
)
)
)
PCB No. 08-95
(Permit Appeal – Third Party)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
)
)
)
Respondents.
)
)
NOTICE OF FILING
To: Thomas G. Gardiner
Michelle LaGrotta
Gardiner, Koch & Weisberg
53 W. Jackson Blvd., Suite 950
Chicago, IL 60604
Charles F. Helsten
Nicola A. Nelson
Hinshaw & Culbertson
100 Park Avenue
Rockford, IL 61105-1389
PLEASE TAKE NOTICE that on this date I electronically filed with the Clerk of the
Pollution Control Board of the State of Illinois the following instrument(s) entitled APPEARANCE
and MOTION TO DISMISS.
Respectfully Submitted,
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Dated: July 7, 2008
Electronic Filing - Received, Clerk's Office, July 7, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, a
municipal corporation,
Petitioner,
)
)
)
)
v.
)
)
)
PCB No. 08-95
(Permit Appeal – Third Party)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
)
)
)
Respondents.
)
)
APPEARANCE
The undersigned hereby enters her appearance in the above-captioned matter as counsel for
the Illinois Environmental Protection Agency.
Respectfully submitted,
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
DATED: July 7, 2008
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, IL 62702-4059
(217) 782-5544
Electronic Filing - Received, Clerk's Office, July 7, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, a
municipal corporation,
Petitioner,
)
)
)
)
v.
)
)
)
PCB No. 08-95
(Permit Appeal – Third Party)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
)
)
)
Respondents.
)
)
RESPONDENT ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S
MOTION TO DISMISS
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
(“Illinois EPA”), by and through its attorney, Michelle M. Ryan, Special Assistant Attorney General,
pursuant to Section 101.506 of the Illinois Pollution Control Board’s (“Board”) Rules and
Regulations, 35 Ill. Adm. Code 101.506, and respectfully states as follows:
1.
On May 1, 2008, Illinois EPA issued a determination to Don Hamman of Hamman
Farms that 80 tons/acre per year was the agronomic rate for application of landscape waste at his
facility in Kendall County (
See
Exhibit A to the Petition). This determination was made pursuant to
Section 21(q) of the Environmental Protection Act, 415 ILCS 5/1
et seq.
(2006) (“Act”). Petitioner,
United City of Yorkville (“Petitioner”), was not a party to this determination.
2.
On June 4, 2008, Petitioner filed this appeal as a third party.
3.
Petitioner cites to 35 Ill. Adm. Code 105.400
et seq.
as its only authority to bring this
appeal. Said reference relates to appeals of Illinois EPA Leaking Underground Storage Tank
(“LUST”) decisions, and has no discernable applicability to this case.
4.
Any authority to file an appeal to the Board of an Illinois EPA decision must be
Electronic Filing - Received, Clerk's Office, July 7, 2008
derived originally from Section 40 of the Act. Section 40(a)(1) of the Act states, “If the Agency
refuses to grant or grants with conditions a permit under Section 39 of this Act,
the applicant
may…petition for a hearing before the Board to contest the decision of the Agency”(emphasis
added). Petitioner is not the applicant, therefore it lacks standing under this provision to appeal the
Illinois EPA decision in this matter.
5.
The Act does provide for third party appeals in several instances: RCRA permits
(Section 40(b)), new hazardous waste facilities (Section 40(c)), CAAPP permits (Section 40(d)), and
NPDES permits (Section 40(e)). All of these situations involve the administration of federally
delegated programs by Illinois EPA.
6.
Section 21(q) of the Act relates to landscape waste composting, which is solely a
State concern. There is no parallel to the third party appeal rights granted by the Act in other
situations.
7.
The expression of one thing in a statute excludes any other, even though there are no
negative words prohibiting it.
City Savings Association v. International Guaranty & Insurance Co.
(1959), 17 Ill.2d 609, 612. Because the Act does not provide for third party appeal in this case,
Petitioner has no standing to raise this appeal.
8.
Furthermore, the Illinois EPA notes that Petitioner has not presented the Board with
any basis to allow the Board to conclude that it has jurisdiction to hear this matter. Thirty years ago,
the Illinois Supreme Court found: “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.”
Landfill, Inc. v. Illinois Pollution Control Board
, 74 Ill. 2d 541, 387 N .E.2d 258, 265
(1978). “If the Board were to become involved as the overseer of the Agency’s decision-making
Electronic Filing - Received, Clerk's Office, July 7, 2008
process through evaluation of challenges to permits, it would become the permit-granting authority,
a function not delegated to the Board by the Act.”
Id.
at 264. These statements of long-standing law
are no less applicable to the case at hand.
WHEREFORE, Illinois EPA respectfully requests that the Board grant Respondent
Illinois EPA’s Motion to Dismiss for one or more of the above-stated reasons and dismiss this
action in its entirety.
Respectfully submitted,
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
DATED: July 7, 2008
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, IL 62702-4059
(217) 782-5544
Electronic Filing - Received, Clerk's Office, July 7, 2008
PROOF OF SERVICE
I hereby certify that I did on the 6
th
day of February, 2008, send by U.S. Mail with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy of the
following instrument(s) entitled APPEARANCE and MOTION TO DISMISS
To: Thomas G. Gardiner
Michelle LaGrotta
Gardiner, Koch & Weisberg
53 W. Jackson Blvd., Suite 950
Chicago, IL 60604
Charles F. Helsten
Nicola A. Nelson
Hinshaw & Culbertson
100 Park Avenue
Rockford, IL 61105-1389
Bradley P. Halloran, Hearing Officer
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
and an electronic copy of the same foregoing instrument on the same date via electronic filing
To: John Therriault, Acting Clerk
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
_________________________________
Michelle M. Ryan
Special Assistant Attorney General
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Electronic Filing - Received, Clerk's Office, July 7, 2008
