aeceiveD

cLeRK's

OFFICE

JUL

2 1 2008

Pollution

STATE

OF

Control

ILLINOIS

Board

PCB No. 08-95

Appeal of Agency Decision

Respectfully submitted,

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE, A

MUNICIPAL

CORPORATION,

Petitioner,

v.

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 RESPONSE TO

AGENCY'S MOTION TO DISMISS,

copies of which are herewith served upon you.

Dated: July 21, 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

UNITE

YORKVILLE,-

. -..petrioner7

By:

One ofdts AttOrneys

THIS FILING IS SUBMITTED ON RECYCLED PAPER

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CERTIFICATE OF SERVICE

I, Michelle M. LaGrotta, the undersigned certify that on July 21, 2008, I have served the

attached

PETITIONER'S RESPONSE TO AGENCY'S MOTION TO DISMISS,

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 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)

Michelle M. LaGrotta

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE,

)

A municipal corporation,

Petitioner,

)

)

)

v.

)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY and

)

HAMMAN FARMS,

)

Respondents.

PCB NO. 08-95

Permit Appeal

ne-CIC)

CLERK'S

IVE

OFF/CE

JUL 2 1 2008

srAre

F'

ILLI

Po/tut/on Control

NOIS

Board

PETITIONER'S RESPONSE TO THE AGENCY'S MOTION TO DISMISS

NOW COMES, Petitioner, United City of Yorkville, by and through its attorneys,

Gardiner Koch & Weisberg, and in response to the Illinois Environmental Protection Agency's

Motion to Dismiss, states as follows:

I. THE AGENCY'S MOTION MUST BE DENIED BECAUSE THE BOARD HAS

AUTHORITY OVER FINAL AGENCY DETERMINATIONS

Although the Illinois Environmental Protection Agency ("Agency") argues that the

United City of Yorkville ("Yorkville") lacks standing, the Illinois Pollution Control Board

("Board") has the authority to review Agency final determinations. The Board's enabling statute

grants the Board the authority to conduct proceedings "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. " 415 ILCS 5/5(d). The Agency's decision of May 1,

2008 granting Hamman Farms permission to apply landscape waste at a rate greater than the

agronomic rate is such a final determination that the Board has the authority to review. Section

21(q) of the Environmental Protection Act ("Act") states the Agency "may allow a higher rate

for individual sites where -the owner or operator has demonstrated to the Agency that the site's

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soil characteristics or crop needs require a higher rate." 415 ILCS 5/21(q). Because the Act

grants the Agency the authority to allow higher rates, the May 1, 2008 decision is a "final

determination made pursuant to this Act" for purposes of Section 5(d) of the Act.

Additionally, the subject area of landscape waste is one which the Board has the authority

to review. Under section 22.33(b) of the Act, the Board has the authority to adopt rules and

regulations governing landscape waste compost facilities. 415 ILCS 5/22.33(b). This leads to

the conclusion that if the Board has the authority to adopt rules and regulations governing

landscape waste compost facilities, the Board must have jurisdictional authority to regulate the

subject area of landscape waste compost facilities, and likewise, the authority to review the

subject area of landscape waste. Because the Agency's May 1, 2008 decision is a final

determination involving a subject area over which the Board has authority, the Agency's

argument fail and its motion to dismiss must be denied.

II. EVEN ASSUMING

ARGUENDO

THAT THE ACT DOES NOT GRANT THE BOARD

THE AUTHORITY TO REVIEW THIS AGENCY DECISION, SOUND PUBLIC

POLICY DEMANDS REVIEW OF AGENCY DECISIONS

Granting the Agency unappealable authority to make decisions, such as the one at issue

in this matter, is bad public policy and gives rise to the potential for abuse. Without oversight,

the Agency possesses the power to grant permits and other types of authorization for activities

that contribute to pollution and misuse of land within the State of Illinois. Agency decisions

must be subject to review to ensure that the Agency follows the provisions of the Act and

performs the necessary investigation prior to granting permits.

Should the Board find that it does not have authority to review the Agency's decision

allowing Hamman to apply to landscape waste at rates of up to 80 tons per acre per year, the

decision will stand despite the Agency's inadequate investigation and failure to follow the Act's

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UNITED CITY OF YORKVILLE

One of its

standards. Section 21(q) of the Act requires that such an allowance be based on a showing that

"the site's soil characteristics or crop needs require a higher rate." Yet, the Agency granted

Hamman permission to apply at a higher rate based on only four soil samples when the Illinois

Agronomy Handbook calls for at least 880 soil samples. With only four soil samples, the

Agency could not have possibly determined that site's soil characteristics or crop needs require a

higher rate. Still, if the Board decides it cannot review this matter, the Agency's decision will

allow Hamman to pollute and misuse land within the State of Illinois in contravention to the

Act's purposes. Thus sound public policy requires the Board to have reviewing authority over

Agency decisions to prevent abuses of power such as the one at issue in this case.

WHEREFORE, for the abovementioned reasons, the United City of Yorkville

respectfully requests the Illinois Pollution Control Board deny the Illinois Environmental

Protection Agency's Motion to Dismiss.

Respectfully submitted,

Thomas G. Gardiner

Michelle M. LaGrotta

Gardiner Koch & Weisberg

53 W Jackson Blvd., Ste. 950

Chicago, IL 606104

(312) 362-0000

Law Firm ID: 29637

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