BEFORE lHE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and HAMMAN
FARMS,
Respondents.
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)
)
)
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)
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)
PCB No. 08-95
(Appeal
of Agency Action)
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on July
7,2008, we electronically filed with the Clerk of
the lllinois Pollution Control Board, Hamman Farms' Motion to Dismiss and Hamman Farms
Memorandum
of Law in Support of its Motion to Dismiss, copies of which are attached hereto
and hereby served upon you.
Dated:
July
7,2008
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
/s/
Charles F. Helsten
One
of Its Attorneys
This document utilized 100% recycled paper products.
70566464vl 883705
Electronic Filing - Received, Clerk's Office, July 7, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
Respondents.
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)
)
)
)
)
)
)
)
)
PCB No. 08-95
(Appeal
of Agency Action)
HAMMAN
FARMS' MOTION TO DISMISS
NOW COMES Respondent, HAMMAN FARMS,
by and through its attorneys, Charles
F. Helsten and HINSHAW
&
CULBERTSON LLP, and for its Motion to Dismiss the petition
filed by the United City
ofYorkville, states as follows:
1.
As an administrative agency created by statute, the Pollution Control Board's
jurisdictional authority is limited to that granted by its enabling statute.
Bevis
v.
Pollution
Control Bd.,
289 ill.App.3d 432, 437, 681 N.E.2d 1096, 1099-1100, 224 Ill.Dec. 475 (5th Dist.
1997).
2.
The illinois Environmental Protection Act (''theAct") authorizes the following
kinds
of proceedings by the Pollution Control Board ("the Board"):
(d) The Board shall have authority to conduct proceedings upon complaints
charging violations
of this Act, any rule or regulation adopted under this Act, any
permit or term or condition
of a permit, or any Board order; upon administrative
citations; upon petitions for variances or adjusted standards; upon petitions for
review
of the Agency's final determinations on permit applications
in
accordance
with Title X
of this Act; upon petitions to remove seals under Section 34 of this
Act; and upon other petitions for review
of final determinations which are made
pursuant
to this Act or Board rule
and which involve a subject which the Board
is authorized to regulate.
The Board may also conduct other proceedings as may
be provided
by this Act or any other statute or rule. (415 ILCS 5/5(d)). (emphasis
added).
70566483vl 883705
3.
On June 4,2008, the United City of Yorkville (hereinafter "Yorkville") filed what
is purported
to be a Petition for Review seeking review of a "final determination" made pursuant
to the Act. (Yorkville's Petition at III (J».
4.
The so-called "final determination" at issue is a technical finding by the Illinois
Environmental Protection Agency ("IEPA") pursuant
to Section 21 of the Illinois Environmental
Protection Act, that the soil characteristics and/or crop needs
of the farmland owned by Hamman
Farms justified a particular rate
of agronomic application oflandscape waste.
5.
The Act does not require a permit for the agronomic application of landscape
waste. The Act defines the term "agronomic rate" to mean "the application
of not more than 20
tons per acre per year, except that the Agency may allow a higher rate for individual sites where
the owner or operator has demonstrated
to the Agency that the site's soil characteristics or crop
needs require a higher rate." 415 ILCS 5/21(q) (emphasis added). In other words, no permit
is
required for the application of landscape waste at either the default agronomic rate, or at a higher
agronomic rate
if the Agency finds that a site's soil characteristics or crop needs justify a higher
rate.
6.
The Act does not require that the IEPA follow a particular protocol in reaching its
technical findings concerning a farm's soil characteristics or crop needs.
See
id.
7.
Because the IEPA's technical determination of the soil characteristics or crop
needs
of a farm is not "a subject which the Board is authorized to regulate," the Board's enabling
statute does not authorize it
to conduct proceedings concerning the Agency's findings which are
challenged by Yorkville in its Petition.
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70566483vl 883705
8.
Similarly, the Board is not authorized to grant the relief requested by Yorkville
("reversal"
of the Agency's technical determination of the appropriate agronomic rate for the
subject farm).
9.
For these reasons, and as further articulated and discussed in the Memorandum of
Law filed concurrently with this Motion, Hamman Farms respectfully requests that the Board
dismiss the Petition filed
by Yorkville.
WHEREFORE, HAMMAN FARMS respectfully requests that the Board enter an order
dismissing this action and granting such other and further relief as it deems appropriate and just.
Dated:
7
I
2.tJ~f
Respectfully submitted,
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100% recycled paper products.
3
70566483vl 883705
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
Respondents.
)
)
)
)
)
)
)
)
)
)
PCB No. 08-95
(Appeal
of Agency Action)
HAMMAN FARMS' MEMORANDUM
OF LAW IN SUPPORT OF ITS
MOTION TO DISMISS
NOW COMES Respondent, HAMMAN FARMS, by and through its attorneys, Charles
F. Helsten and HINSHAW
&
CULBERTSON LLP, and for its Memorandum of Law in Support
of its Motion to Dismiss, states as follows:
BACKGROUND FACTS
In
the spnng of 2008, Hamman Farms requested that the Illinois Environmental
Protection Agency ("IEPA") allow the agronomic application
of landscape waste at Hamman
Farms at a rate higher than the statutory default rate
of 20 tons per acre per year, based on the
farm's soil characteristics and the nutritional needs
of its crops; the IEPA is authorized to allow a
higher agronomic rate under 415 ILCS 5/21 (q), where the higher rate is justified
by soil
characteristics
or crop needs. IEPA responded by asking for additional information.
See
generally,
Complaint at Ill(H) through (D).
On April 10, 2008, Hamman Farms responded to the IEPA's request for additional
information with a four (4) page letter and twenty-two (22) pages
of attachments that addressed,
in detail, each
of the questions raised by IEPA. After reviewing the information provided by
Hamman Farms, IEPA dispatched representatives from the Agency to personally inspect and
assess the Hamman Farms property and farming operation. Eventually,
on May 1, 2008, the
70566489vl 883705
IEPA notified Hamman Farms that its soil characteristics and crop needs justified a higher
agronomic rate.
See
Exh. A to Yorkville'sPetition.
The Agency authorized an agronomic rate
of up to 80 tons per acre per year, based on its
analysis
of the data, however the Agency required that the agronomic application be done in
conformity with the procedures Hamman Farms had detailed in its prior submission
to the
Agency, and as long
as the application also complied with eight (8) additional conditions which
were designed
to provide enhanced environmental safeguards.
Id.
Thereafter, the Agency has
dispatched inspectors on
an ongoing basis to ensure that the application was being performed in
compliance with all required conditions.
ARGUMENT
The jurisdictional authority
of the Pollution Control Board (the "Board") is limited.
Chemetco, Inc.
v.
PCB,
140 Ill. App. 3d 283, 286 (5th Dist. 1986); 415 ILCS
515.
As an
administrative agency created by statute, the Board's jurisdictional authority is limited
to that
granted
by its enabling statute.
Bevis
v.
Pollution Control Bd.,
289 Ill.App.3d 432, 437, 681
N.E.2d 1096, 1099-1100,224 Ill.Dec. 475 (5
th
Dist. 1997).
The Illinois Environmental Protection Act ("the Act") authorizes the Board
to conduct
proceedings only for the following matters:
(d) The Board shall have authority
to conduct proceedings upon complaints
charging violations
of this Act, any rule or regulation adopted under this Act, any
permit or term or condition
of a permit, or any Board order; upon administrative
citations; upon petitions for variances or adjusted standards; upon petitions for
review
of the Agency's final determinations on permit applications in accordance
with Title X
of this Act; upon petitions to remove seals under Section 34 of this
Act; and upon other petitions for review
of final determinations which are made
pursuant to this Act or Board rule
and which involve a subject which the Board
is authorized to regulate.
The Board may also conduct other proceedings as may
be provided by this Act or any other statute or rule. (415 ILCS
5/5(d))
(emphasis
added).
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No statutory or regulatory provision authorizes the Board to regulate IEPA's technical
analysis and detennination
of the appropriate agronomic rate for individual farms based on their
soil characteristics andlor crop needs. Thus, the
IEPA's technical findings concerning the soil
characteristics andlor nutritional needs
of crops at Hamman Farms, and, in tum, its detennination
of the appropriate agronomic rate based on that technical analysis, is not "a subject which the
Board is authorized to regulate."
See id.
In addition to the description of authorized proceedings that appears at 415 ILCS
5/5(d),
the relevant implementing regulations also circumscribe the limits of the Board'sjurisdiction to
conduct adjudicatory proceedings, and 2 IlI.Adm.Code 2175.600(a) delineates the types
of cases
the Board is specifically authorized to hear:
a) The Board is authorized to hear the following types
of adjudicatory cases: (See
35 Ill. Adm. Code 101-130 for procedural rules governing the processing
of these
cases.)
1) Enforcement Action. The Illinois Attorney General, any State's Attorney,
or
any person may initiate an enforcement action by the filing of a complaint
pursuant to Section
31 ofthe Act (415 ILCS
5/31).
(See 35 Ill. Adm. Code 103.)
2) Pennit Appeal. Any person who, pursuant to Section 39
of the Act (415 ILCS
5/39),
has been denied a pennit by the Agency, or issued a pennit by the Agency
with one
or more conditions to which that person objects, may file a petition with
the Board for review
of the Agency's action. If the Agency grants a RCRA pennit
for a hazardous waste disposal site or grants or denies a National Pollutant
Discharge Elimination System (NPDES) pennit, certain third parties
may petition
the Board for a hearing to contest the decision
of the Agency (415 ILCS
5/40(b),
(e)(l)). (See 35 Ill. Adm. Code 105.)
3) Pollution Control Facility Siting Review. An applicant for local siting approval
of a pollution control facility who has been denied such approval or granted
conditional approval
by a county board or the governing body of a municipality
may contest that decision by filing a petition for hearing pursuant to Section
40.1(a)
of the Act (415 ILCS 5/40.1 (a)). A third party who participated in the
public hearing conducted
by a county board or the governing body of a
municipality
may contest a grant of local siting approval by filing a petition for
hearing pursuant to Section 40. 1(b)
of the Act (415 ILCS
5/40.1(b)).
(See 35 Ill.
Adm. Code 107.)
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70566489vl 883705
4) Variances/Adjusted Standards. Any person adversely affected by a Board rule
or order may file a petition for a variance pursuant to Section 37
of the Act (415
ILCS 5/37) or a petition for an adjusted standard pursuant to Section 28.1 of the
Act (415 ILCS 5/28.1). (See
35 Ill. Adm. Code 104.)
5) Trade Secret Detennination. Any person who is adversely affected by a trade
secret detennination made by the Agency or the Department may contest that
detennination before the Board. (See
35 Ill. Adm. Code 130.)
6) Appeal of Office of the State Fire Marshal (OSFM) UST Fund Eligibility or
Deductibility Determination. Owners or operators
of USTs who have been denied
eligibility
by the OSFM to access the UST reimbursement fund, or who disagree
with an OSFM detennination
of the applicable deductible for UST Fund
reimbursement, may petition for review pursuant to Section 57.9(c)
of the Act
(415 ILCS 5/57.9(c)). (See
35 Ill. Adm. Code 105.)
7) Appeal of Agency Decisions Regarding UST Program. Owners or operators of
USTs who have been denied requested UST Fund reimbursement or UST cleanup
approvals
by the Agency may petition for review pursuant to Section 40 of the
Act (415 ILCS 5/40). (See
35 Ill. Adm. Code 105.)
8) Tax Certifications. Under the Property Tax Code, the Board may issue a
certificate finding that a facility
is a "pollution control facility" or that a device is
a "low sulfur dioxide emission coal fueled device" for property tax purposes (35
ILCS 200/11-10, 11-40). A person seeking a tax certificate must first submit
an
application to the Agency. The Agency is then required to file with the Board a
recommendation on whether the Board should issue the certificate. An applicant
who wishes to contest an Agency recommendation that the Board deny tax
certification may file a petition with the Board. (See 35 Ill. Adm. Code 125.)
9) Administrative Citations. The Agency or a unit of local government delegated
authority by the Agency may issue administrative citations for violations
of
Sections 21(0) and (P) of the Act (415 ILCS 5/21(0) and (P)). These citations are
enforceable by filing copies with the Board pursuant to Section
31.1 of the Act
(415 ILCS 5/31.1). The respondent named in the administrative citation may file a
petition for review with the Board. (See
35 Ill. Adm. Code 108.)
10) Water Well Setback Exceptions. A water well owner may petition the Board
for an exception from the water well setback requirements
of the Act by filing a
petition with the Board pursuant to Section 14.2
of the Act (415 ILCS 5/14.2.).
(See 35 Ill. Adm. Code 106.)
11) Other. Any other proceedings authorized by the Act or the Board'sprocedural
rules may be brought before the Board pursuant to statutory authority and any
Board regulations adopted thereunder.
Id.
(emphasis added).
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70566489vl 883705
Under the implementing regulations at 2 Ill.Adm.Code 2175, the only vaguely plausible
category that might provide a basis for the Board's jurisdictional authority to hear and decide
Yorkville's Petition would be category "11 - Other." However, no "statutory authority" or
"Board regulations adopted thereunder" exist which authorize Board proceedings to review, and
potentially "reverse," IEPA's technical findings concerning a particular farm's soil
characteristics or the nutritional needs of its crops, thus, this is not a subject the Board is
authorized to regulate.
Here, Yorkville seeks to characterize its action as a petition for review
of the Agency's
final decision in a permit-related matter.
See, e.g.,
Petition at paragraphs G and 1. However, no
permit is required for the agronomic application of landscape waste at either the statutory default
rate of 20 tons per acre per year, or at a higher rate if the higher rate is justified by a farm's soil
characteristics or by the nutritional needs of its crops.
See
415 ILCS 5/21 (q).
Moreover, even assuming,
arguendo,
that the Agency's decision had involved the
issuance of a permit (which, again, it did not), the Supreme Court has observed that the
legislature delegated to IEPA the authority to perform "technical, licensing, and enforcement
functions."
Landfill, Inc.
v.
Pollution Control Bd.,
74 Ill.2d 541, 554, 387 N.E.2d 258,262-263,
25 Ill.Dec. 602, 606-607 (Ill. 1978). The Agency is, therefore, vested
by the legislature with "the
duty to collect and disseminate information, acquire technical data, and conduct experiments to
carry out the purposes
of the Act... [and to] conduct surveillance and inspection of actual or
potential pollution sources."
Id.
The Agency also has the non-delegable duty to "administer
permit systems established
by the Act or regulations and has the authority to require permit
applicants to submit plans and specifications and reports regarding actual or potential violations
of the Act, regulations or permits."
Id.
5
70566489v1883705
Illinois courts have observed that "[t]he need for a technical staff capable of perfonning
independent investigations dictates that the job
of administering the pennit system be entrusted
to the Agency rather than the Board.
If the Board were to become involved as the overseer of the
Agency's decision-making process through evaluation
of challenges to pennits, it would become
the pennit-granting authority, a function not delegated to the Board by the Act."
Citizens
Utilities Co.
ofIllinois
v.
PCB,
265 Ill.App.3d 773, 780, 639 N.E.2d 1306, 203 Ill.Dec. 487
(3fd
Dist. 1994),
citing Landfill,
74 Il1.2d at 557.
The one exception
is the Board's role in hearing petitions by pennit applicants whose
pennits have been denied.
Id.
"There are no comparable statutory provisions for Board review
on either substantive or technical grounds
of the Agency's grant of a pennit, thus indicating a
legislative intent not to provide for such a proceeding."
Citizens Utilities,
265 Ill.App.3d at 780,
citing
Landfill,
74 Ill.2d at 557 (emphasis added). The Supreme Court has expressly rejected the
idea that third parties have a right to a Board hearing on the Agency's granting
of a pennit.
Id.
Moreover, there is a sound public policy reason for disallowing such challenges, inasmuch as the
Board could otherwise find itself deluged
by hundreds, if not thousands, of actions each year by
third parties who are disgruntled about the granting
of a pennit. Such a system would be
unworkable and would place an undue burden on State resources.
Most importantly, however, the agronomic application
of landscape waste in compliance
with 415 ILCS 5/21(q) does not require a pennit, and therefore Hamman Fanns did not seek a
"pennit," but instead sought a technical detennination from IEPA
of the appropriate agronomic
rate, in light
ofthe farm's particular soil characteristics and crops. In response, the Agency made
that technical, factual detennination after its experts had analyzed the data.
6
70566489vl 883705
Because this technical analysis is a matter left exclusively to the jurisdiction of the
Agency, there is no jurisdictional authority for the Board to hear and decide Yorkville's Petition,
and the Board similarly lacks authority to grant the relief sought: reversal
of the IEPA'stechnical
findings.
CONCLUSION
Yorkville's purported "Petition for Review" asks this Board to reVIew a technical,
analytical finding reached
by the IEPA concerning the nutritional crop needs and soil
characteristics
of a particular farm. Although the Board clearly possesses technical expertise of
its own, the technical detennination at issue here is one that the Illinois legislature has expressly
left to the discretion
of the Agency.
See
415 ILCS 5/21 (q). When it comes to calculating the
appropriate agronomic rate, the legislature chose to vest IEPA with exclusive authority to review
the scientific data on a case by case basis, and it did not authorize the Board
to conduct
proceedings to second-guess the Agency's technical findings, or to enter orders "reversing" such
findings.
Because the Board is not "authorized
to regulate" the Agency's technical findings under
415 ILCS 5/21(q) as to the appropriate agronomic rate in light
of a fann's soil characteristics or
the nutritional needs
of crops, the Board is not authorized by either 415 ILCS 5/5(d) or by 2
Ill.Adm.Code 2175.600(a)
to hear and decide the matter challenged by Yorkville in its Petition.
For these reasons, and
as set forth in Hamman Farms' Motion to Dismiss, Hamman
Farms respectfully requests that the Board dismiss the Petition filed
by Yorkville.
WHEREFORE, HAMMAN FARMS respectfully requests that the Board enter an order
dismissing this action and granting such other and further relief as it deems appropriate and just.
7
70566489vl 883705
Dated:
Respectfully submitted,
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
This document utilized 100% recycled paper products.
8
70566489vl 883705
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty
ofperjury under the laws of the United States of America,
certifies that
on July 7,2008, 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
(via electronic filing)
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Fax: 217-782-9807
Thomas
G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH
&
WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago, IL 60604
Fax: 312-362-0440
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 w. Randolph Street
Chicago,IL 60601
(via email: hallorab@ipcb.state.il.us)
A copy of the same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour of 5:00
p.ma~~
_
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
