BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
HAMMAN FARMS"
Respondents.
)
)
)
)
)
)
)
)
)
)
PCB No. 08-96
(Enforcement-Land, Air, Water)
NOTICE OF FILING
TO:
SEE ATTACHED SERVICE LIST
PLEASE
TAKE NOTICE that on July 8,2008, we electronically filed with the Clerk of
the Illinois Pollution Control Board, Respondent Hamman Fanns' Motion to Strike and/or
Dismiss, a copy ofwhich is attached hereto and hereby served upon you.
Dated:
Respectfully submitted,
Charles F. HeIsten
Nicola NeIson
Hinshaw &
Culbertson LLP
100 Park Avenue
P.O.
Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100°/. recycled paper products.
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
HAMMAN FARMS,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 08-96
(Enforcement-Land, Air, Water)
RESPONDENT'S MOTION TO STRIKE AND/OR DISMISS
NOW COMES the Respondent, HAMMAN FARMS, by and through its attorneys,
Charles
F. Helsten and HINSHAW & CULBERTSON LLP, and hereby moves the Board
to
strike andlor dismiss Counts II,
ill
and IV of Yorkville's Complaint, and to strike Yorkville's
request for attorney'sfees and costs, and
in support thereof, states as follows:
1.
On June 4, 2008, the City of Yorkville ("Yorkville'')initiated this enforcement
action against Respondent, Hamman Fanus.
2.
Enforcement actions filed
by persons other than the Attorney General or a State's
Attorney are citizen's complaints, therefore Yorkville's action is a citizen complaint.
See 35
Il1.Adm.Code 103.106; see also 35 IIl.Adm.Code 101.202 (defining "Citizen's enforcement
proceeding" to mean
"an enforcement action brought before the Board pursuant to Section 31(d)
ofthe Act by any person who is not authorized to bring the action on behalf of the People of the
State
of illinois.")
Yorkville'sRequests for Improper Relief are Frivolous
3.
Yorkville's citizen's complaint requests, in each of its four counts, an award of
attorney'sfees and costs oflitigation.
4.
The Board lacks statutory authority to award attorney's fees and other litigation
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expenses in citizen enforcement actions.
See Zohfeld
v.
Drake et al.,
PCB 05-193 (July 7,2005)
(citing
ESG Watts, Inc.
v.
PCB.
286 HI. App. 3d 325, 337-39, 676 N.E.2d 299 (3rd Dist. 1997);
People
v.
State Oil Co.,
PCB 97-103 (Aug. 19, 1999).
5.
Inasmuch as Yorkville'srequest for attorney'sfees and costs is a request for relief
that the Board has
no authority to grant, its request for attorney's fees and costs should be
stricken as frivolous.
Id.; see also
35 TIl.Adm.Code 101.202.
Countn
6.
Count II of Yorkville's complaint is largely duplicative of its action in the
simultaneously filed "Petition for Review" (pCB 08-095), in which Yorkville alleges that the
Illinois Environmental Protection Agency ("IEP
A') violated the law when it allowed Hamman
Fanns
to apply landscape waste at the rate of up to eighty (80) tons per acre per year.
(see
generally,
Petition for Review in PCB 08-095; and Complaint in PCB 09-096, Count II,
paragraph
49). Thus, Yorkville asserts in Count II of this action that the IEPA itself broke the
law when
it detenmned the appropriate agronomic rate at Hamman Farms, and that when
Hamman Farms conducted its farming operations in accord with the Agency's express
authorization, it, too, broke the law.
7.
Count II goes on to allege that Hamman Farms' agronomic use
of landscape
waste
in
the amounts expressly authorized by the Agency should be construed as "open
dumping" and the "[conducting
of] waste-storage and waste-disposal operations...without a
permit and in violation
of the Act and regulations." (Count II, paragraphs 50, 51). Moreover,
Yorkville claims that Hamman Farms' use
of landscape waste in its fields, again, as expressly
authorized by the Agency, caused the fann to "[become] a waste disposal site" without a permit
to operate as such. (Complaint at Count II, paragraph 52).
2
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8.
For the reasons set forth in Hamman Farms'Motion to Dismiss and Memorandum
of Law in Support thereof, filed in PCB 08-095, which is incorporated herein by reference and
attached hereto as Exhibit A, the Board lacks jurisdiction to reverse the Agency's technical
[mdings
as
to
the appropriate agronomic application of landscape waste at Hamman Farms.
See
Exh. A;
see also
415 ILCS 5/2l(q) (which provides that the "agronomic rate" of application of
landscape waste means "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 5/2l(q) (emphasis added).
9.
Similarly, the Board lacks jurisdiction to issue the finding requested in Count II:
that the Agency broke the law when it calculated the agronomic rate for Hamman Farms, and
that Hamman Farms' agronomic use
of landscape waste, as expressly authorized
by
IEPA, was
therefore a violation
ofthe Act.
10.
Because the Board lacks jurisdictional authority to enter such a ruling, Count II
should
be stricken as frivolous, or in the alternative, dismissed.
1
CountDI
11.
Count ill purports to state a claim for air
pollutio~
arguing that, as a matter of
law, the application of landscape waste to farm fields causes the release of contaminants into the
air, and therefore causes air pollution, and thus the agronomic use
of landscape waste
in
farming
constitutes a violation
ofthe Act.
(See generally,
Yorkville'sComplaint at Count III).2
1 It should be noted, additionally, that Yorkville did not name the Agency as a co-respondent, despite alleging that
the Agency violated
the
Act and the regulations.
2 Notably, under Yorkville's interpretation of the Act, the use of any fertilizer, whether
in
the form of manure,
3
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12.
Count
ill
fails to comply with the Board'sprocedural roles, which require that the
complaint contain "[t]he dates,
locatio~
events, nature, extent, and strength of discharges or
emissions and consequences alleged to constitute violations of the Act and regulations." 35
Ill.Adm.Code 103.204(c). Yorkville's allegations in Count
ill
are nothing more than sweeping
legal assertions, which lack the specificity demanded by the Rule. Count
fir
should therefore be
dismissed for a failure to comply with the
Board'sRules.
13.
Moreover, it is worth noting that in addition to having expressly authorized the
application
of landscape waste to farm fields, the Illinois legislature has also enacted special
protections for Illinois farms to guard against those who would file nuisance
suits based on the
odors associated with farming, announcing that it is:
the declared policy
of the state to conserve and protect and encourage the
development and improvement
of its agricultural land for the production of food
and other agricultural products. When nonagricultural land uses extend into
agricultural areas, farms often become the subject
of nuisance suits. As a result,
fanns are sometimes forced to cease operations. Many others are discouraged
from
making
investments in farm improvements.
It
is the purpose of this Act to
reduce the loss to the State
of its agricultural resources by limiting the
circumstances under which fanning operations may
be deemed to be a nuisance.
740
ILCS 70/1.
14.
Yorkville's assertion,
in Count III, that the odors attendant to the application of
landscape waste to farm fields "unreasonably interferes with Yorkville's residents' use and
enjoyment of life and property" bears a rather striking resemblance to a nuisance action against a
farm based on
the odors of farming.
In
reality, Count III is nothing more than a nuisance action
landscape waste, or commercial liquid fertilizer, constitutes
air
pollution
in
violation of the Act, since all fertilizers
cause a release
of odor (and therefore "contaminants") into the air. Thus, apparently, farming should be declared
illegal.
4
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draped in statutory clothing.
(See
Count Ill, paragraph 59).
15.
In
addition to the generalized claim that the application of landscape waste
to
farIil fields causes "air pollution," Count
ITr
goes on to allege that, because the agronomic use of
landscape waste causes air pollution, when Hamman Fanns applied landscape waste to its fields,
it was "allowing the discharge of contaminant into the environment so as to cause air pollution
under section 9(a)
ofthe Act." (Count ill, paragraphs 58-61).
16.
Yorkville's Complaint thus attacks the legislature's authorization
of the
agronomic use
of landscape waste in farm fields, as fertilizer and soil conditioner, and asserts
that the
very conduct which is expressly authorized at 415 ILCS 5/21(q) actually constitutes a
violation
ofthe Act as a matter oflaw.
] 7.
The Board, however, lacks jurisdiction to overrule the legislature's decision to
allow farmers to use landscape waste as a soil conditioner and fertilizer, and
it cannot, therefore,
invalidate 415 ILCS 5/21(q) and declare that the conduct
it authorizes is illegal.
18.
Because Count
ill
asks the Board to find that the agronomic application of
landscape waste to fann fields, which is authorized by 415 ILCS 5/21(q), is illegal, the Board
lacks jurisdiction to grant the relief sought. Count
ill
should accordingly be stricken as frivolous,
or in the alternative. dismissed for,
inter alia,
failing
to
comply with 35 ll1.Adm.Code
103.204(c)(2).
Count IV
19.
Count
N
alleges Water Pollution violations which, like the Air Pollution
violations alleged in Count Ill, are predicated
on Yorkville's theory than the agronomic use of
landscape waste in farming "is water pollution
in
that the landscape waste is a contaminant
which is being discharged into ground water" and that therefore,
by applying landscape waste, as
5
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authorized by the statute, and as authorized by IEPA (as acknowledged in Count ll), Hamman
Farms uis allowing the discharge of contaminant into the environment so as to cause or tend to
cause water pollution
...[and] so as to create a water pollution hazard under section 12(d) of the
Act." (Complaint, Count IV at 66-69).
20.
For the same reasons set forth above with respect to the alleged Air Pollution
violations, the Board lacks jurisdiction to give Yorkville what it demands: a finding that the
agronomic application
of landscape waste, as authorized by the lllinois legislature at 415 ILCS
5/21(q), and as expressly authorized by the IEPA with respect to Hamman Farms, is illegal.
21.
In
addition,
as
with Count
m, in
Count
N
Yorkville again fails to list "[t]he
dates, location, events, nature, extent, duration, and strength
of discharges or emissions and
consequences alleged to constitute violations of the Act and regulations."
See
35 m.Adm.Code
103.204(c)(2).
22.
Accordingly, Count N should be stricken as frivolous, or
in
the alternative,
dismissed for,
inter alia,
failure
to
comply with the Board'sprocedural rules.
WHEREFORE: Respondent, Hamman Farms, respectfully requests that the Board strike
Yorkville's request for attorney's fee and costs, and strike.or
dismiss Counts II, III and IV of
Yorkville'sComplaint.
Dated:
.:::k;\~
9. I
aOO~
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O.
Box 1389
6
Respectfully submitted,
On
behalf ofHamman Fanns
lsi
One of Its Attorneys
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Rockford,
II.
61105-1389
815-490-4900
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EXJ-I,A
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 ofAgency Action)
BAMl\1AN
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 m.App.3d 432, 437, 681 N.E.2d 1096, 1099-1100,224 Ill.Dec. 475 (5th Dist.
1997).
2.
The TIlinois Environmental Protection Act ("the Act") authorizes the following
kinds
ofproceedings by the Pollution Control Board (''theBoard"):
(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 pennit, 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 pennit 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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3.
On June 4,2008, the United City ofYorkville (hereinafter ''Yorkville'')filed what
is purported to
be a Petition for Review seeking review ofa "final determination" made pursuant
to the Act. (Yorkville's Petition at
ITl (J».
4.
The so-called "final detennination" at issue is a technical finding by the Illinois
Environmental Protection Agency
(HIEP
A'')
pursuant to Section 21 of the Illinois Environmental
Protection Act, that the soil characteristics and/or crop needs
ofthe farmland owned by Hamman
Fanns 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 ''theapplication 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'ssoil 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
fann's soil characteristics or crop needs.
See id.
7.
Because the IEPA's technical determination of the soil characteristics or crop
needs
of a fann is not "a subject which the Board is authorized to regulate," the Board'senabling
statute does not authorize
it to conduct proceedings concerning the Agency's findings which are
challenged
by Yorkville in its Petition.
2
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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,
H~N
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:
72tJdf
t
•
Respectfully submitted,
Charles F. Heisten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105.1389
815-490-4900
This document utilized lOOfo recycled paper products.
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FILE
COpy
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
ofAgency 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 spring of 2008, Hamman Fanns requested that the lllinois Enviromnental
Protection Agency ("IEPA") allow the agronomic application
of landscape waste at Hamman
Fanns at a rate higher than the statutory default rate
of 20 tons per acre per year, based on the
fann'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 infOImation.
See
generally,
Complaint at III(B) through (D).
On
April 10, 2008, Hamman Fanns responded to the IEPA's request for additional
infonnation 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 infonnation provided by
Hamman Fanns, IEPA dispatched representatives from the Agency to personally inspect and
assess the Hamman Fanns property and farming operation. Eventually, on May
1, 2008, the
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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
ofup 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
confonnity 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.
ld.
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 lll. App. 3d 283, 286 (5th Dist. 1986); 415 ILCS 5/5. 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 (''theAct") 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 tenn or condition of a pennit, 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 detenninations which are made
pursuant to this Act or Board rule
and which involve a subject which the Board
is authorized to regulo.te.
The Board may also conduct other proceedings as may
be provided
by this Act or any other statute or rule. (415 ILCS 5/S(d» (emphasis
added).
2
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No statutory or regulatory provision authorizes the Board to regulate !EPA's technical
analysis and determination
of the appropriate agronomic rate for individual farms based on their
soil characteristics and/or crop needs. Thus, the
!EPA's technical findings concerning the soil
characteristics and/or nutritional needs
of crops at Hamman Fanns, and, in tum, its determination
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 TIl.Adm.Code
21 75.600(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
TIl. Adm. Code 101.130 for procedural rules governing the processing of these
cases.)
1) Enforcement Action. The Dlinois 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
TIl.
Adm. Code 103.)
2) Permit 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 permit by the Agency
with one
or more conditions to which that person objects, may file a petition with
the Board for review
ofthe Agency'saction. If the Agency grants a RCRA permit
for a hazardous waste disposal site or grants or denies a National Pollutant
Discharge Elimination System (NPDES) permit, certain third parties
may petition
the Board for a hearing
to
contest the decision of the Agency (415 ILCS 5/40(b),
(e)(I». (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.l(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 TIt.
Adm. Code 107.)
3
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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 TIL Adm. Code 104.)
5) Trade Secret Determination. Any person who is adversely affected
by a trade
secret determination made
by the Agency or the Department may contest that
determination before the Board. (See
35
m.
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 determination
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
35lll. Adm. Code 105.)
8) Tax Certifications. Under the Property Tax Code, the Board may issue a
certificate finding that a facility is a ''pollutioncontrol 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 Dl. 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.
[d.
(emphasis added).
4
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Under the implementing regulations at 2 m.Adm.Code 2]75, 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 pennit-related matter.
See, e.g.,
Petition at paragraphs G and J. However, no
pennit 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
5121(q).
Moreover, even assuming,
arguendo,
that the Agency's decision had involved the
issuance
of a pennit (which, again,
it
did not), the Supreme Court has observed that the
legislature delegated to IEPA the authority to perfonn "technical, licensing, and enforcement
functions."
Landfill, Inc.
v.
Pollution Control Bd.,
74 Il1.2d 541, 554,387 N.E.2d 258,262-263,
25
TIl.Dee. 602, 606-607 (TIl. 1978). The Agency is, therefore, vested by the legislature with "the
duty to collect and disseminate infonnation, 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."
ld.
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
ofthe Act, regulations or pennits."
Id.
5
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illinois courts have observed that "[t]he need for a teclmical staff capable of performing
independent investigations dictates that the
job of administering the pennit system be entrusted
to the Agency rather than the Board. Ifthe Board were to become involved as the overseer of the
Agency's decision-making process through evaluation of challenges to permits, it would become
the pennit-granting authority,
a function not delegated to the Board by the Act."
Citizens
Utilities Co. ofIllinois v. PCB,
265 1lI.App.3d 773, 780, 639 N.E.2d 1306,203 ill.Dec. 487 (3
rd
Dist. 1994),
citing Landfill,
74111.2d at 557.
The one exception is the Board's role
in
hearing petitions by permit applicants whose
permits have been denied.
ld.
"There are no comparable statutory provisions for Board review
on either substantive
or technical grounds of the Agency's
gmm
of a permit, thus indicating a
legislative intent not
to provide for such a proceeding."
Citizens Utilities,
265 m.App.3d at 780,
citing
Landfill,
74 m.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.
ld.
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
!LeS
5121(q)
does not require a permit, and therefore Hamman Farms did not seek a
"pennit," but instead sought a technical determination from IEPA of the appropriate agronomic
rate, in
light ofthe farm'sparticular soil characteristics and crops.
In
response, the Agency made
that technical, factual determination after its experts
had analyzed the data.
6
70566489vl 883705
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Because this teclmical 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'sPetition,
and the Board similarly lacks authority
to grant the relief sought: reversal ofthe IEPA'stechnical
findings.
CONCLUSION
Yorkville's purported "Petition for Review" asks this Board to review a teclmical,
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 determination at issue here is one that the Dlinois 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 farm's soil characteristics or
the nutritional needs
of crops, the Board is not authorized by either 415 ILCS 5/5(d) or by 2
I1I.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 Fanus' Motion to Dismiss, Hamman
Farms respectfully requests that the Board dismiss the Petition filed
by Yarkville.
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
70566489v) 883705
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Dated:
Respectfully submitted,
On behalf of Ham;rf/
One
a-4Q)!ufH-.-
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 lOOgo recycled paper products.
70S66489v! 883705
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AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the lllinois Code of Civil
Procedure,.hereby under penalty ofpe:tjury under the laws ofthe United States ofAmerica,
certifies that on July 8, 2008, she caused to be served a copy ofthe foregoing upon:
Mr. John T. Therriault, Assistant Clerk
lllinois Pollution Control Board
100
W. Randolph, Suite 11-500
Chicago, IL 60601
(via electronic filing)
Bradley P. Halloran
Hearing Officer
minois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 w. Randolph Street
Chicago,IL 60601
(via email: baDorab@ipcb.state.il.us)
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH & WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago,
IL 60604
Fax: 312-362-0440
A
copy ofthe same was enclosed in an envelope in the United States mail at Rockford, lllinois,
proper
postage prepaid, before the hour of5:00
p.m.~~
PCB No. 08-96
Charles F. Helsten
Nicola
A. Nelson
HINSHAW
&
CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
70S67539vl 883705
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