ORIGINAL
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE,
A municipal corporation,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and
HAMMAN FARMS,
PCB NO. 08-95
Permit Appeal
RECEIVED
C
LERK'S OFFICE
AUG
0 I 2008
STATE OF ILLINOIS
Pollution Control
Board
Respondents.
PETITIONER'S BRIEF IN RESPONSE TO HEARING OFFICER'S
JULY 24, 2008 ORDER
NOW COMES, Petitioner, United City of Yorkville, by and through its attorneys,
Gardiner Koch
&
Weisberg, and in response to the Hearing Officer's Order of July 24, 2008
requesting brief, states as follows:
I. BACKGROUND
This case stems from the Illinois Environmental Protection Agency's Decision of May 1,
2008, which grants Hamman Farms ("Hamman") permission to apply landscape waste at rates of
80 tons per acre per year. Pursuant to section 21(q) of the Illinois Environmental Protection Act
("Act"), the Illinois Environmental Protection Agency ("Agency") has the authority to allow
entities to apply landscape waste at rates greater than the agronomic rate (the Act defines the
agronomic rate as 20 tons per acre per year). The Agency's decision to increase the rate of
landscape waste to greater than the agronomic rate must be based on the entities' crop needs or
soil characteristics. On April 11, 2008, Hamman submitted its application to the Agency
requesting an increase in the rate of landscape waste application from the agronomic rate to 80
tons per acre per year. Although Hamman's application included some nitrogen calculations,
the application included only four soil samples for Hamman's 2200 acres.
II. INFORMATION THAT PETITIONER BELIEVES TO BE DISCOVERABLE,
RELEVANT AND ADMISSIBLE
Hamman's application was insufficient to address the issue of whether Hamman's crop
needs or soil characteristics require an increase in the rate of landscape waste application. To
prove that Hamman's application was insufficient and the Agency's review inadequate, the
following information is necessary. In order to determine whether Hamman's crop needs or soil
characteristics require a higher amount of landscape waste application, it is necessary to have
Hamman's records regarding the amount of landscape waste being applied to the fields during
previous years. These records will provide background and a comparison with which to
determine whether the agronomic rate has adequately met the soil's characteristics and crop
needs or whether a higher rate is needed. Additionally, records regarding Hamman's crop yields
during previous years are necessary to provide data for accurate nitrogen and potassium
calculations. Hamman used 250 bushels per acre to determine its nitrogen requirements, but
Hamman did not supply any records that support its fields actually yield that amount or have the
potential to yield that amount. Proper review also requires information and records regarding
what fertilizers and soil conditioners are being used, where those fertilizers and soil conditioners
have been used in the past, and maps of Hamman's fields identifying where landscape waste,
fertilizer, and soil conditioners have been applied. All the aforementioned information is
relevant, and consequently, it should be discoverable and admissible.
In addition, testimony and evidence discussing the information that the Agency should
have obtained is also relevant, and that information should be discoverable and admissible. This
information includes recommendations regarding the appropriate number of soil tests that are
needed to complete a proper soil analysis test. Additionally, nitrogen and potassium calculations
completed by other experts are necessary to evaluate the Agency's review. Any information
with Hamman's ability and tendency to comply with the Act, including violation notices issued
to Hamman and complaints regarding Hamman, are relevant. Consequently, the foregoing
testimony and evidence should be discoverable and admissible. This would include expert
opinions evaluating the Agency's decision and guides and/or handbooks covering landscape
waste application.
Moreover, even if the Board determines that the scope of the review is limited to the
Agency record, the information that Yorkville is requesting relates to the information that the
agency had before it or should have had before it. The Agency has information related to
numerous complaints regarding Hamman's operations and violation notices issued to"Hamman.
Additionally, the Agency should have had before Hamman's On-Farm Landscape Waste
Compost Facility Annual Reports, which provide data related to the amount of composting
material that Hamman used on its property. The Agency's entire file is relevant to the issue of
whether Hamman's crop needs or soil characteristics required an increase in the rate of landscape
waste application, not just the information that Hamman presented in its initial application and
supplemental applications. Therefore, Yorkville should be able to present evidence regarding
information that the Agency had before it or should have had before it. This information is
relevant, and thus, it should be discoverable and admissible.
Because proper analysis of the Hamman application requires additional discovery outside
the Agency record, the Hearing Officer should issue an order compelling the Respondents to
answer Petitioner's Discovery and finding that all relevant information be discoverable and
admissible.
WHEREFORE, Petitioner respectfully request the Hearing Officer to issue an order
allowing the parties to conduct discovery beyond the Agency's record, compelling the
respondents to answer written discovery by August 8, 2008, and finding relevant information to
be admissible and discoverable, or in the alternative, issue an order allowing parties to conduct
discovery regarding the Agency's entire file on Hamman farms, compelling respondents to
answer written discovery on the Agency's file by August 8, 2008, and finding relevant
information to be admissible and discoverable.
Respectfully submitted,
Thomas G. Gardiner
Michelle M. LaGrotta
Gardiner Koch & Weisberg
53 W Jackson Blvd., Ste. 950
Chicago, IL 60604
(312) 362-0000
Law Firm ID: 29637
RECEIVED
CLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AULi
0 1 2008
UNITED CITY OF YORKVILLE, A
)0RIGINAL
?
STATE OF
ILLINOIS
MUNICIPAL CORPORATION,
Pollution
Control
Board
Petitioner,?
)
)?
PCB No. 08-95
v.?
)?
Appeal of Agency Decision
ILLINOIS ENVIRONMENTAL
?
)
PROTECTION AGENCY, and?)
HAMMAN FARMS,
?
)
Respondents.
?
)
NOTICE OF FILING
TO: SEE PERSONS ON ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office of Clerk of the Illinois
Pollution Control Board, an original and nine copies each of
PETITIONER'S BRIEF IN
RESPONSE TO HEARING OFFICER'S JULY 24, 2008 ORDER,
copies of which are
herewith served upon you.
Respectfully submitted,
UNITED CITY OF YORKVILLE,
Petitioner,
One of its Attorneys
Dated: August 1, 2008
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH & WEISBERG
53 W Jackson Blvd., Ste. 950
Chicago, IL 60604
(312) 362-0000
Atty ID: 29637
By:
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK'S OFFICE
AU6
0 1 2008
STATE OF ILLINOIS
Pollution Control Board
,
2008, I have served
OFFICER'S JULY
I, Michelle M. LaGrotta, the undersigned certify that on August 1
the attached
PETITIONER'S BRIEF IN RESPONSE TO HEARING
24, 2008 ORDER,
upon:
Mr. John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, Illinois 60601-3218
(via hand delivery)
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Ste. 22-500
100 W Randolph Street
Chicago, IL 60601
(via hand delivery)
Michelle M. Ryan
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
(via email to: Michelle.Ryan@illinois.gov and
U.S.
Mail)
Charles F. Helsten
Nicola A. Nelson
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(via email to: NNelson@hinshawlaw.com and
U.S.
Mail)
A
tci
ta
4
Michelle M. LaGrotta
ORIGINAL
CERTIFICATE OF SERVICE