March 9, 2007

DALE L. STANHIBEL,

)

)

Complainant,

)

)

Vs.

)

)

TOM HALAT d/b/a TOM’S

) PCB 07-17

VEGETABLE MARKET

) (Citizens Enforcement-Air, Noise)

)

Respondent.

)

)

)

)

ANSWER TO FORMAL COMPLAINT & AFFIRMATIVE DEFENSES

NOW COMES, the Respondent, Tom Halat and Tom’s Farm Market and Greenhouse,

Inc., by and through it’s attorneys, Franks, Gerkin & McKenna, P.C., and for his Answer to the

Formal Complaint states as follows:

1.

Respondent lacks knowledge sufficient to form a belief as to numbered

paragraph one and therefore denies said paragraph and requires strict proof thereof.

2.

Respondent lacks knowledge sufficient to form a belief as to numbered

paragraph one and therefore denies said paragraph and requires strict proof thereof.

3.

The portion of paragraph three which states aka-Tom’s Vegetable Market

is denied. The remaining portion of paragraph three is admitted.

4.

Paragraph four is denied.

5.

Paragraph five is denied.

6.

Paragraph six is denied.

7.

Paragraph seven is denied.

8.

Paragraph eight it denied.

9.

Paragraph nine is denied.

10.

Paragraph ten is denied.

Electronic Filing, Received, Clerk's Office, March 13, 2007

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11.

Paragraph eleven is denied.

WHEREFORE, the Respondent, Tom Halat hereby requests that the formal complaint in

this matter be denied with any further or other relief that the Board deems just and equitable.

AFFIRMATIVE DEFENSES

NOW COMES, the Respondent, Tom Halat and Tom’s Farm Market and Greenhouse,

Inc., by and through it’s attorneys, Franks, Gerkin & McKenna, P.C., and for his Affirmative

Defenses as follows:

I. Subject Matter Jurisdiction.

12.

Respondents obtained permits through the Illinois Department of Natural

Resources/Illinois Conservation Police for all periods of time in which propane cannons were

utilized on the property of Tom’s Farm Market and Greenhouse, Inc.

13.

520 ILCS 5/2.37, which was first enacted in 1980, gives specific authority to the

Illinois Department of Natural Resources and the Illinois Conversation Police to issue the

permits specifying the means and methods by which wildlife may be removed.

14.

The State of Illinois, through the Illinois Department of Natural Resources and

the Illinois Conservation Police have permitted the use of propane cannons by Tom’s Farm

Market and Greenhouses, Inc., therefore, those agencies have utilized its specific authority to

allow the cannons despite any possible conflict with the Pollution Control Act under 415 ILCS

5/24, which was originally adopted subsequent to 1988 and is a more general statute then 520

ILCS 5/2.37.

1.

Therefore, the Illinois Pollution Control Board does not have subject matter

jurisdiction over this issue.

II. Preemption of Board Authority.

1-4.

Paragraphs one through four are re-alleged and are incorporated herein by

reference.

2.

Therefore, the Illinois Department of Natural Resources and the Illinois

Conservation Police through 520 ILCS 2/2.37 preempts any authority by the Illinois Pollution

Control Board over this issue.

WHEREFORE, the Respondent, Tom Halat and Tom’s Farm Market and Greenhouse,

Inc., hereby requests that Judgment enter in favor of the Respondents and against the

Complainant with cost and any other or further relief that the Board deems just and equitable.

Respectfully Submitted,

Electronic Filing, Received, Clerk's Office, March 13, 2007

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Steven J. Greeley, Jr.

VERIFICATION

Tom Halat being first duly sworn on oath deposes and states that he is the Respondent in

this case in the above-entitled cause; that he has read the above and foregoing Answer to Formal

Complaint and Affirmative Defenses, by him subscribed, knows the contents thereof and the

same are true.

Tom Halat

FRANKS, GERKIN & McKENNA, P.C.

Attorneys for Respondent

19333 E. Grant Hwy, P.O. BOX 5

Marengo, Illinois 60152

Telephone: (815)-923-2107

Fax: (815)-923-2107

S:\Docs\Steven\Client files\Halat, Tom\Answer to Formal Complaint 3 9 2007wpd.wpd

Electronic Filing, Received, Clerk's Office, March 13, 2007