BEFORE THE ILLINOIS
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner,
v.
POLLUTION CONTROL BOAR EC E 1 v
E
D
>ORIGINAL
?
CLERK'S
JUN 0
4
OFFICE
2008
)
STATE OF ILLINOIS
)?
PCB No.
00
—I
Pollution Control
Board
)?
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 the
PETITION FOR REVIEW
of
UNITED CITY OF YORKVILLLE, ENTRY OF APPEARANCE OF THOMAS G.
GARDINER,
and
ENTRY OF APPEARANCE OF MICHELLE M. LAGROTTA,
copies of
which are herewith served upon you.
Failure to file an answer to this complaint within 60 days may have severe consequences.
Failure to answer will mean that all allegations in the complaint will be taken as if admitted for
purposes of this proceeding. If you have any questions about this procedure, you should contact
the hearing officer assigned to this proceeding, the Clerk's Office, or an attorney.
Respectfully submitted,
Dated: June 4, 2008
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH & WEISBERG
53 W Jackson Blvd., Ste. 950
Chicago, IL 6.0604
(312) 362-0000
Atty ID: 29637
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Michelle M. LaGrotta
CERTIFICATE OF SERVICE
I, Michelle M. LaGrotta, the undersigned certify that I have served the attached
PETITION FOR REVIEW of UNITED CITY OF YORKVILLLE, ENTRY OF APPEARANCE
OF THOMAS G. GARDINER, and ENTRY OF APPEARANCE OF MICHELLE M.
LAGROTTA, upon:
Pollution Control Board, Attn: Clerk
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, Illinois 60601-3218
by hand delivery on June 4, 2008; and upon
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Hamman Farms
Attn: Mr. Donald J. Hamman
6275 Route 71
Oswego, Illinois 60543
by registered mail by placing copies in the United States Mail, postage prepaid, in Chicago,
Illinois on June 4, 2008.
Cell/ED
RK'S OFFICE
JUN 0 4 2008
BEFORE THE ILLINOIS
P.014_,VIION
CONTROL BO
Pollutton
STATE Con
trol
LLINOISBoa
rd
PCB No. 0
0 -7
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and
)
HAMMAN FARMS,
Respondents.
)
)
ENTRY OF APPEARANCE OF THOMAS G. GARDINER
NOW COMES, Thomas G. Gardiner, of the law film of GARDINER KOCH &
WEISBERG, and hereby enters his appearance on behalf of Petitioner, UNITED CITY OF
YORKVILLE, in the above-referenced matter.
Respectfully submitted,
Dated: June 4, 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
• ,pin
UNITED CITY OF YORKVILLE, A )
MUNICIPAL CORPORATION, )
Petitioner, )
v.
Appeal of Agency Decision
PCB No.
0-i
(
?
Pollution Control Board
STATE OF ILLINOIS
Appeal of Agency Decision
JUN 0 4 208
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
),
Petitioner,
)
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY, and
)
HAMMAN FARMS,
)
Respondent.
)
ENTRY OF APPEARANCE OF MICHELLE M. LAGROTTA
NOW COMES, Michelle M. LaGrotta, of the law firm of GARDINER KOCH &
WEISBERG, and hereby enters his appearance on behalf of Petitioner, UNITED CITY OF
YORKVILLE, in the above-referenced matter.
Respectfully submitted,
UNITED CITY OF YORKVILLE,
Petitioner,
By:
A
Michelle
.
c/tekiit,/fri,k
M. LaGrotta
Dated: June 4, 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
Pit
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CeCeiVeLERK'S
OFF
ICP
JUN
0
00
1
2 8
Appeal of Agency Decision
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and
HAMMAN FARMS,
Respondents.
PETITION FOR REVIEW
Pursuant to the Illinois Environmental Protection Act and 35 Ill. Admin. Code § 105. 400
et seq,
petitioner United City of Yorkville submits this Petition for Review of the Illinois
Environmental Protection Agency Decision of May 1, 2008.
I.
AGENCY DECISION
The Decision of which review is sought is contained in Exhibit A hereto.
II.
SERVICE OF THE AGENCY'S FINAL DECISION
The Decision indicates that it was mailed on May 1, 2008.
III. GROUNDS FOR APPEAL
A. Section
21(q) of the Illinois Environmental Protection Act ("Act") prohibits
persons from conducting landscape waste compost operations without a permit. However,
section 21(q) does not require a permit for the application of landscape waste at agronomic rates.
That section of the Act and section 830.102 of Title 35 of the Illinois Administrative Code
("Code") define the agronomic rate as twenty (20) tons per acre per year. These sections also
give the Illinois Environmental Protection Agency ("Agency") the authority to allow greater
rates of landscape waste application
upon a showing that the soil characteristics or crop needs
require a higher rate.
(emphasis added)
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner,
v.
PCB No.
44
tt
-I
fn
SFonitlioLiroa
lSra
B.
On April 10, 2008, Hamman Farms ("Hamman"), a farming operation located on
2200 acres of land in Kendall County, filed a request for permission to apply landscape waste at
rates greater than the agronomic rate of twenty (20) tons per acre per year. Hamman included
with its application the following documents: (1) Land Application Plan; (2) USDA Soil
Conservation Service Soil Survey; (3) Chemical Analysis of Soil/Compost; (4) Calculations
regarding Nitrogen Demand and Expected Nitrogen and Potassium Loading; and (5) Opinion of
Dr. Razvi.
C.
On April 16, 2008, Hamman filed a supplemental application.
D.
On May 1, 2008, the Agency approved Hamman's request to raise the agronomic
rate. See Exhibit "A." The Decision allows Hamman to apply landscape waste at rates up to
eighty (80) tons per acre per year and includes several conditions.
E.
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.
a.
First, the Chemical Analysis of Soil/Compost included four (4) soil samples and
one (1) sample of leaves with mixed forage. Midwest Laboratories, who performed the
tests, received the four soil samples and conducted the analyses on December 7, 2007.
Midwest Laboratories' report did not identify the location from where the samples were
taken. Midwest Laboratories, Inc. received the sample of leaves with mixed forage on
December 5, 2007.
b.
The Illinois Agronomy Handbook recommends using a sampling of one
composite from each two and one half (2 1/2) acre areas when conducting soil test
analysis. Mr. Gary Cima, an expert in landscape application and former Agency
investigator, recommends using a sampling of two composites from each one acre area.
Hamman's soil tests were insufficient for the Agency to thoroughly evaluate Hamman's
soil and crop needs.
c.
Additionally, the few soil tests that were included in Hamman's request should.
have alerted Agency investigators to the need for additional investigation. The test
results showed high levels of potassium and phosphorus. These results indicate that
either Hamman used additives or that he was already applying sufficient amounts of
landscape waste.
d. The sample test of the leaves with mixed forage is not representative of the
nutrient availability in the landscape waste that will be applied to Hamman's land. The
analysis was conducted on sample of leaves with mixed forage from December when the
leaves are dead and thus nutrient deficient. The landscape waste, which Hamman applies
to its fields, is landscape waste collected in the spring and summer. The nutrient
availability of such landscape waste is higher than the nutrient availability of landscape
waste in December. Thus, the Agency's calculations of the amount of landscape waste
needed to meet Hamman's soils needs are erroneous.
e.
Finally, the Agency's conditions included in the Decision are completely
unworkable and inadequate to protect the environment and ensure Hamman's
compliance.
F. Petitioner, United City of Yorkville ("Yorkville"), is an Illinois municipal
corporation located in Kendall County, Illinois. Hamman is located in and near Yorkville.
G.
Prior to the Agency's Decision, Hamman has admitted to applying landscape
waste at rates greater than agronomic rates without a permit.
H.
Since Hamman began applying landscape waste to its fields in the early 1990's,
Yorkville residents have complained of a strong and offensive odor coming from Hamman's
lands.
I.
Yorkville has made complaints to the Agency regarding Hamman's application
of landscape waste.
J.
Pursuant to section 5(d) of the Act, the Illinois Pollution Control Board ("Board")
has the authority to conduct proceedings upon complaints charging violations of the Act and
upon petitions for review of final deteiminations which are made pursuant to this Act. As a
result, the Board has the authority to review the Agency's Decision because it is a final
deteimination made pursuant to 21(q) of the Act. It also has the authority because the Agency's
Decision was made in violation of the Act and was not based on Hamman's soil characteristics
or crop needs.
WHEREFORE, Petitioner, United City of Yorkville, respectfully requests the Illinois
Pollution Control Board to reverse the Agency's Decision; order the Agency to deny Hamman
Farm's request to apply landscape waste at a rate greater than the agronomic rate; and grant such
other relief it deems just and equitable.
Respectfully submitted,
Thomas G. Gardiner
Michelle M. LaGrotta
Gardiner Koch & Weisberg
53 W Jackson Blvd., Ste. 950
Chicago, IL 60604
Atty ID: 29637
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021
NORTH GRAND AVENUE EAST, P.O. Box 19276,
SPRINGFIELD, ILLINOIS 62794-9276 - ( 217) 782-3397
JAMES
R.
THOMPSON CENTER,
100
WEST RANDOLPH, SUITE 11-300.
CHICAGO, IL 60601 - (312) 814-6026
ROD R. BLAGOJEVICH, GOVERNOR DOUGLAS P. SCOTT, DIRECTOR
217/524-3300
May 1, 2008
Don Hamman
Hamman Farms
6275 Route 71
Oswega, Illinois 60543
Re: 0930155023 — Kendall County
Hamman Farms
Log No. PS08-054
Permit
'1Cc..,0Nec
s+
Co
rr
Dear Mr. Hamman:
Certified Mail
7007
0220 0000
0040
2655
7007 0220
0000
0040 2662
Charles F. Hesten
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
144
El
1 0
onliq
xf...""i
This letter is in response to your letter, dated April 10, 2008, and received by Illinois EPA on
April 14, 2008, requesting an increase to the agronomic rate for application of landscape waste to
the fields of Hamman Farms in accordance with Section 21(q) of the Illinois Protection Act.
Based upon the information provided in the April 10, 2008 submittal, the Illinois Environmental
Protection 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 the. following conditions:
1.
Only landscape waste may be applied to the fields; no man-made or other waste may be
applied to the farm fields.
2.
Hamman Farms shall not apply landscape waste to any field where the phosphorous
content exceeds 400 lbs/acre.
3.
Landscape waste may be applied to a maximum depth of 3", unless Hamman maintains
appropriate records that demonstrate that the amount of landscape waste applied is less
than or equal to 80 tons/acre/year.
4.
Hamman Farms shall maintain records, on a daily basis, for:
a.
amount of landscape material received (volume)
b.
General type of landscape waste applied (grass, leaves, storm debris or other)
c.
amount of landscape material applied
d.
location (and acreage) where landscape waste applied
e.
any other relevant records necessary to demonstrate that the rate of application is
less than or equal to 80 tons/acre of landscape waste applied
lioCKFoRo 4302 North Main Street, Rockford, IL 61 103 - (815) 987-7760 •
DES PLAINES -
9511 W. Harrison St., Des Plaines, IL 60016 -(847) 294-4000
ELGIN - 595 South State, Elgin, IL 60123 - (847) 608-3131
?
• PEORIA - 5415 N. University St., Peoria, IL 61614 - (309) 693-5463
BUREAU
OF
LAND - PEORIA -
7620 N. University St., Peoria, IL 61 614 - (309)
693-5462 • CHAMPAIGN -
2125 South First Street, Champaign, IL 61820 - (217) 278-5800
SPRINGFIELD -
4500 S. Sixth Street Rd., Springfield,
IL 62706 - (217) 786-6892 • COLLINSVILLE - 2009 Mall Street, Collinsville, IL 62234 - (618) 346-5120
MARION -
2309 W. Main St., Suite 116, Marion, IL 62959 - (618) 993-7200
PRINTED ON RECYCLED PAPER
Page 2
5.
Hamman Farms shall process, apply and incorporate the landscape waste the same day it
is received on site. If Hamman Farms is unable to process, apply and incorporate the
landscape waste on the date it is received, Hamman Farms shall notify Illinois EPA's Des
Plaines Regional Office by phone at 847/294-4000, document the reason for the failure to
process, apply and/or incorporate the landscape waste (such as inclement weather or
equipment failure), document any steps taken by Hamman Farms to remedy the failure,
and document the duration that Hamman Farms expects to be unable to process/apply
and/or incorporate landscape waste. If, due to circumstances beyond its control,
Hamman Farms finds it is unable to process, apply and incorporate the landscape waste
within five days after receipt, Hamman Farms will cease its receipt of landscape waste
until such time as its capacity for same-day processing, application and incorporation is
restored. This condition does not supersede the requirements of Condition 6 below.
6.
Hamman Farms shall process, apply and incorporate the landscape waste in a manner that
prevents the generation of nuisance conditions from flies or odors. Hamman Farms shall
reduce or cease the application of landscape waste, as necessary, to prevent nuisance
conditions.
7.
Hamman Farms shall use good agricultural practices to minimize storm water runoff
from the fields. The good agricultural practice shall consist of, at a minimum,
maintenance of buffer strips and field borders, and placement of phosphorous containing
material beneath the top two inches of the soil surface. Landscape waste shall not be
applied within 25 feet of drainage ways.
8.
In accordance with good agricultural practices, Hamman Farms shall periodically (at least
once every four years) perform soil testing on the fields where landscape waste is
applied. Soil shall be tested for, at a minimum, the following parameters: pH, organic
matter, phosphorous, potassium, magnesium, calcium and nitrate-nitrogen.
If Hamman Farms would like to continue with an application rate of landscape waste greater
than 20 tons/acre per year, for calendar year 2012 and beyond, they must submit a request to
continue the use of the increased agronomic rate by December 31, 2011. The request shall
contain, at a minimum, the following information:
•
A detailed description of all soil additives used between May 2008 and December 2011
•
The results of all soil testing as described in Condition 8 above, and any corresponding
agronomic recommendations generated as a result of said testing.
•
If the soil testing indicates that the soil pH may need to be adjusted, information
concerning soil additives that may be used to adjust the pH, including the additives to be
used, chemical composition of the additives, and the planned application rate.
Page 3
•
Nitrogen agronomical calculations.
•
A discussion the change of organic carbon and phosphorus content of the soil.
•
Documentation of the farm production rate (bushels/acre) of the various crops grown at
Hamman Farms.
•
Any other information, as necessary, to support a request for an increase in the allowable
agronomic rate.
If you have any additional questions in this matter, please contact Derek Rompot at 217/558-
2150.
Stephen F. Nightingale, P.E.
Manager, Permit Section
Bureau of Land
SFN:D
?
4R:bjh\082472s.doc
bcc: Bureau File
Des Plaines Region
DLC — Bill Ingersoll
FOS
Ted Dragovich
Steve Nightingale
Derek Rompot