BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    UNITED CITY OF YORKVILLE, A
    MUNICIPAL CORPORATION,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY, and
    HAMMAN
    FARMS,
    Respondents.
    )
    )
    )
    )
    )
    )
    )
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    )
    )
    PCB No. 08-95
    (Appeal
    ofAgency Action)
    NOTICE OF FILING
    TO: SEE ATTACHED SERVICE LIST
    PLEASE
    TAKE
    NOTICE that on July 23,2008, we electronically filed with the Clerk of
    the Illinois Pollution Control Board, Hanunan Farms' Motion for Hearing Officer's Ruling on
    Discovery,
    a
    copy ofwhich are attached hereto and hereby served upon you.
    Dated:
    July 23, 2008
    Charles F. Helsten
    Nicola Nelson
    Hinshaw
    &
    Culbertson LLP
    100 Park Avenue
    P.O. Box 1389
    Rockford, IL 61105-1389
    815-490-4900
    Respectfully submitted,
    On behalf
    of
    HAMMAN
    FARMS
    lsi
    Charles F. Helsten
    One
    ofIts Attorneys
    This
    document utilized 100% recycled paper products.
    70566464vl 883705
    Electronic Filing - Received, Clerk's Office, July 23, 2008
    BEFORE lHE ILLINOIS POLLUTION CONTROL BOARD
    UNITED CITY OF YORKVILLE, A
    MUNICIP
    AL
    CORPORATION,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and HAMMAN
    FARMS,
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB No. 08-95
    (Appeal
    of Agency Action)
    HAMMAN FARMS'MOTION FOR HEARING OFFICER'S RULING ON DISCOVERY
    NOW COMES Respondent, HAMMAN FARMS, by and through its attorneys, Charles
    F. Helsten and HINSHAW & CULBERTSON LLP, pursuant to 35 IIl.Adm.Code 10
    1.6lO(m)
    and 35 1ll.Adm.Code 101.616, and requests the issuance
    of an Order by the Hearing Officer
    concerning discovery, stating as follows:
    1.
    In
    response to the position asserted by counsel for the Illinois Environmental
    Protection Agency ("IEPA") at the July 22, 2008 status conference concerning discovery, and
    having reviewed the Board's recent decision
    in
    Des Plaines River Watershed Alliance
    v.
    lEPA,
    PCB 04-088, which was cited by IEPA's counsel during the conference, Respondent Hamman
    Farms believes that IEPA's position opposing discovery
    in
    the instant action is well taken.
    2.
    In particular, Hamman Farms notes that the Board explained in
    Des Plaines River
    Watershed Alliance
    that the Petitioner alone bears the burden of establishing that, based on the
    record as
    it existed at the time of the Agency's decision, issuance of the challenged permit will
    violate the Act
    or Board regulations.
    ld.
    at 11.
    3.
    Although Hamman Farms reiterates its position that the Board lacks jurisdiction
    to
    hear this case, given that no pennit was issued
    in
    the instant action, and although the
    Des
    Plaines Watershed Alliance
    case involved the issuance of a NPDES pennit, Hamman Farms
    70569083v! 883705
    Electronic Filing - Received, Clerk's Office, July 23, 2008
    nevertheless agrees that under
    Des Plaines Watershed Alliance,
    in
    an appeal challenging the
    issuance
    of a permit (which is how the Petitioner characterizes this action), the only relevant
    evidence is that which was included as part
    of the record at the time of the Agency'sdecision.
    4.
    Accordingly, Hamman Farms believes that discovery is unauthorized in this
    particular case, and,
    in
    addition, would unnecessarily and improperly increase the burden of this
    litigation
    on Respondents.
    5.
    Hamman Farms therefore requests issuance of an Order by the Hearing Officer
    declaring that discovery is inappropriate in this action.
    6.
    If, however, the Hearing Officer finds and orders that discovery is appropriate in
    this action:
    a.
    Respondent Hamman Farms proposes that written discovery be propounded by
    the end ofthe day on July 24, 2008.
    b.
    Respondent Hamman
    Fanns and Petitioner City of Yorkville have conferred and
    are
    in agreement that written discovery should be answered no later than Friday,
    August
    1, 2008, with depositions, if any,
    to
    be conducted between August 4, 2008
    and August 13, 2008. (See email to counsel for Hamman Farms, sent
    by coWlsel
    for the City
    ofYorkville, attached hereto as Exhibit A).
    6.
    Respondent Hamman Farms makes no representation herein concerning the
    position
    ofIEPA with respect to appropriate discovery deadlines.
    WHEREFORE, Respondent HAMMAN FARMS respectfully requests that the Hearing
    Officer enter an order declaring that discovery is inappropriate in this action, or in the
    alternative, that the Hearing Officer enter an order declaring that:
    2
    70569083v} 883705
    Electronic Filing - Received, Clerk's Office, July 23, 2008
    1.
    Written discovery be propounded by the end ofthe day on July 24, 2008;
    2.
    Written discovery be answered by August 1, 2008; and
    3.
    Depositions,
    if any, be conducted between August 4, 2008 and August 13, 2008.
    Dated:
    Respectfully submitted,
    On behalf of Hamman Farms
    One of Its Attorneys
    Charles F. Helsten
    Nicola Nelson
    Hinshaw
    & Culbertson LLP
    100
    Park Avenue
    P.O. Box 1389
    Rockford, IL 61105-1389
    815-490-4900
    George Mueller
    Mueller
    Anderson, P.C.
    609 Etna Road
    Ottawa,IL 61350
    815/431-1500
    3
    70569083vl 883705
    Electronic Filing - Received, Clerk's Office, July 23, 2008
    -Michelle Lagrotta-
    <mlagroua @gkw-Iaw.oom:>
    07/23/200811
    :44 AM
    EXHIBIT
    To "Nicola Nelson" <NNelson@hinshawlaw.com>
    ee
    ''Thomas Gardiner" <tgardiner@gkw-Iaw.com>
    bee
    SUbject YOIkville v. Hamman- Proposed discovery schedule
    Here is our proposed discovery schedule:
    Complete written discovery
    by
    Friday, August
    1, 2008.
    Oral discovery take place August
    4_12
    Ih
    /13
    1h
    •
    Michelle M. LaGrotta
    Gardiner Koch & Weisberg
    53 W Jackson Blvd., Ste. 950
    Chicago, Illinois
    60604
    (312) 362-0000
    mlagrotta@gkw-Iaw.com
    Electronic Filing - Received, Clerk's Office, July 23, 2008
    AFFIDAVIT OF SERVICE
    The undersigned, pursuant to the provisions ofSection 1
    ~
    109 ofthe Illinois Code of Civii
    Procedure, hereby under penalty ofperjury under the laws of the United States ofAmerica,
    certifies that on July 23,2008. she caused to be served a copy ofthe foregoing upon:
    Mr. John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board
    100 W. Randolph, Suite 11-500
    Chicago, IL 60601
    therriaj@ipcb.state.il.u5
    (via electronic filing)
    via e-mail
    Michelle Ryan
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    1021 N. Grand Avenue East
    P.O. Box 19276
    Springfield, IL 62794-9276
    Michelle.Ryan@lllinois.gov
    via e-mail
    Thomas G. Gardiner
    Michelle M. LaGrotta
    GARDINER KOCH & WEISBERG
    53 W. Jackson Blvd., Ste. 950
    Chicago,IL 60604
    tgardiner@gkw-Iaw.com
    mlagrotta@gkw-Iaw.com
    via emaill
    Bradley P. Halloran
    Hearing Officer
    Illinois Pollution Control Board
    James
    R.
    Thompson Center, Suite 11-500
    100
    w. Randolph Street
    Chicago,IL 60601
    haUorab@ipcb.state.iI.us
    A copy ofthe same was enclosed in an envelope in the United States mail at Rockford, Illinois,
    proper postage prepaid, before the hour of 5:00 p.m., addressed
    ~ove.
    PCB No. 08-95
    Charles F. Helsten
    Nicola A. Nelson
    HINSHAW & CULBERTSON
    100 Park Avenue
    P.O. Box 1389
    Rockford. IL 61105-1389
    (815) 490-4900
    70566472vl 883705
    Electronic Filing - Received, Clerk's Office, July 23, 2008

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