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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

REC

CLERK'S

FIVE

Enforcement-Land, Air, Water

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

HAMMAN'S MOTION TO STRIKE AND/OR DISMISS,

copies of which are herewith

served upon you.

Respectfully submitted,

UNITED CITY

OF YORKVILLE, A

MUNICIPAL CORPORATION,

Petitioner,

PCB No. 08-96

UNITED CITY OF YORKVILLE,

GARDINER KOCH & WEISBERG

53 W Jackson Blvd., Ste. 950

Chicago, IL 60604

(312) 362-0000

Atty ID: 29637

THIS FILING IS SUBMITTED ON RECYCLED PAPER

CERTIFICATE OF SERVICE

I, Michelle M. LaGrotta, the undersigned certify that on July 22, 2008, I have served the

attached

PETITIONER'S RESPONSE TO HAMMAN'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

Rockford, IL 61105-1389

(via email to: NNelson@hinshawlaw.com and

U.S.

Mail)

Michelle M. LaGrotta

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

LERK'S OFFICE

JUL 2 2 2008

PCB No. 08-96

(Enforcement-Land, Air, Y-

STATE

dtrtlilon

Control

ILLINOIS

Board

UNITED CITY OF YORKVILL, A

MUNICIPAL CORPORATION,

Complainant,

HAMMAN FARMS,

Respondent.

YORKVILLE'S RESPONSE TO RESPONDENT'S MOTION

TO STRIKE AND/OR DISMISS

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

Gardiner Koch & Weisberg, and for its response to Respondent's Motion to Strike and/or

Dismiss, it states as follows:

I. COUNT II MUST STAND BECAUSE IT IS NEITHER FRIVOLOUS NOR

DUPLICATIVE

A. The Board Has The Authority to Grant the Relief Requested in Count II, And As

Such, Count II is Not Frivolous

The Illinois Pollution Control Board ("Board") possesses the authority not only to make

findings that Hamman Farms ("Hamman") violated the Illinois Environmental Protection Act

("Act") but also to grant the relief requested in Count II of the United City of Yorkville's

complaint. Thus, Hamman's claim that Count II is frivolous is erroneous. Hamman argues that

the Board lacks the authority to make specific findings that Hamman is violating the Act. Yet,

the entire basis for having enforcement proceedings is for the Board to determine whether a

particular person or entity is violating or threatening to violate the Act. In fact, section 5(d) of

the Act provides, "[t]he 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

condition of a permit, or any Board order." 415 ILCS 5/5(d). There can be no doubt that the

Board has the authority to make determinations that a person or entity is violating the Act.

Despite the Act's explicit language, Hamman still attempts to put a cloud on the Board's

authority by claiming that the Board cannot make a factual determination regarding whether the

Illinois Environmental Protection Agency's ("Agency") decision of May 1, 2008 violates the Act

such that it causes pollution. This decision allows Hamman to apply landscape waste at rates

greater than the agronomic rate. As discussed above, the Board is specifically granted the

authority to conduct proceedings upon complaints charging violations of the Act. Although

Hamman attempts to hide its violations behind this pseudo-permit, the Act provides a permit is

no defense to the charge of a violation of the Act.

ILL. ADMIN. CODE TIT.

35 § 201.121. If a full

out permit does not provide an entity protection from violations, the Agency's mere grant of

permission in the May 1, 2008 decision will not provide Hamman protection. Therefore,

regardless of whether the Agency's May 1, 2008 decision was correct or not, Hamman still

cannot use that decision to protect itself from the violations that Yorkville claims.

Moreover, the Illinois Appellate Court has noted in

White Fence Farm, Inc. v. Land and

Lakes Co. et al

that the plaintiff should have filed enforcement proceedings when seeking review

of a permit that the plaintiff claimed violated the Act. 99 Ill. App. 3d 234, 238 & 244 (4

Dist.

1981). The Court stated, "Even though [the defendant] has a sanitary landfill permit, it does not,

by virtue of that permit, have a license to pollute the environment. [Plaintiff] can pursue a

section 31(b) action before the Board, alleging that [the defendant] is threatening pollution, and

the permit will be no defense to that action." Id. at 244. Similarly, Yorkville is charging that

Hamman is polluting and violating the Act by applying landscape waste at rates greater than the

agronomic rate. The Board has the authority to make these findings. Consequently, Count II of

Yorkville's complaint is not frivolous, and Hamman's motion to strike and/or dismiss Count II

must be denied.

The Board Has The Expertise And Authority To Make Decisions Regarding The

Agency's May 1, 2008 Decision

Hamman further tries to confuse the issues by declaring that the Board has no authority to

evaluate and/or reverse the Agency's technical findings by incorporating its Motion to Dismiss

filed in PCB Case No. 08-95. While the Board likely does not need to review and/or evaluate the

Agency's decision to determine that Hamman violated the Act under Count II, the Board is more

than able to provide such review. First, the Act requires the Board to be "composed of seven

technically qualified Board members with the expertise to make the necessary inquiries and

evaluation."

Jurcak v. Environmental Protection Agency,

161 Ill. App. 3d 48, 53

Dist. 1987).

Additionally, the Appellate Court further determined that reviews of a permit are best left to the

Board because such a decision "requires evaluation and judgment based on scientific data,

knowledge of waste water treatment technologies and engineering methodology and the

application of technical standards." Id. Thus if the Board were required to review the Agency

decision, those technical determinations are well within the Board's expertise. As a result, Count

II is not frivolous, and it should not be dismissed.

This Matter Is Distinguishable From That In PCB Case No. 08-95 So It Cannot

Be Stricken Or Dismissed On The Basis Of Duplicity

This matter is not duplicative of the matter seeking review the Agency decision (PCB No

08-95). The other matter is an appeal of the Agency decision granting Hamman authority to

apply landscape waste at rates of up to 80 tons per acre per year. On the other hand, these

proceedings are enforcement proceedings, which seek findings by the Board that Hamman has

violated the Act and caused land, air and water pollution. Additionally, Count II charges that

Hamman violated the Act by operating a landscape waste compost facility without a permit.

Thus, these proceedings arc not duplicative because they are not identical or substantially

similar, and Count II should not be stricken or dismissed.

II. DESPITE HAMMAN'S ATTEMPTS TO CONFUSE THE BOARD, COUNT III MUST

STAND

A. Count III Reasonably Allows Preparation Of A Defense, And Thus, It Should

Not Be Dismissed

Count III satisfies the requirements of Section 103.204(c) of Title 35 of the Illinois

Administrative Code. That section states as follows: "The complaint must advise respondents of

the extent and nature of the alleged violations to reasonably allow preparation of a defense."

(emphasis added) ILL.

ADMIN. CODE TIT.

35 § 103.204(c). The specificity of the complaint must

be such as to "reasonably allow preparation of a defense." Here, Count III, when taken together

with the general allegations of Yorkville's Complaint, offers such description and specificity that

Hamman is more than able to reasonably prepare a defense. For example, Yorkville includes

dates of when Hamman first applied landscape waste to its fields and when complaints of odor

first began. See Yorkville Complaint, pg. 1 4 & pg. 2 1112. Additional information can be

obtained through the use of discovery procedures, such as interrogatories and depositions.

Because Yorkville's Complaint reasonably allows Hamman to prepare its defense, it satisfies the

requirements of Section 103.204(c). Therefore, Hamman's motion must be denied.

B. Hamman's Claim That Count III Is "Nothing More Than A Nuisance Action"

Completely Ignores The Act's Statutory Language And Definition Of Air Pollution

Hamman, in its motion to strike Count III, completely misses the mark with its argument

that Count III is a veiled nuisance complaint that somehow is prohibited by the Illinois

legislature. Hamman claims that because Yorkville's Count III used the following language that

the odor "unreasonably interferes with Yorkville's residents' use and enjoyment of life and

property," it is somehow a nuisance complaint. However, Yorkville's language in Count III

comes directly from language in Act. Specifically, that language is taken from Section 3.115,

which provides:

'Air pollution' is the presence in the atmosphere of one or more

contaminants in sufficient quantities and of such characteristics and

duration as to be injurious to human, plant, or animal life, to health, or

to property, or to unreasonably interfere with the enjoyment of life or

property." (emphasis added) 415 ILCS 5/3.115.

Moreover, the Act defines a contaminant as "any solid, liquid, or gaseous matter, any odor, or

any form of energy, from whatever source." (emphasis added). Regardless of whether this

language is similar to any language that would be used in a nuisance action, it is the Act's

language and it designates the standards that the Board must follow to determine whether there

are violations of the Act, specifically whether Hamman has committed air pollution. See 415

ILCS 5/9(a), 415 ILCS 5/3.115, 415 ILCS 3.165. Furthermore, because the Board is charged

with the authority to conduct enforcement proceedings based on violations of the Act, Count III

cannot be frivolous and should not be stricken and/or dismissed.I

As discussed above in Section I (A), the Illinois Administrative Code clearly provides

that permits are no defense to violations of the Act. ILL.

ADMIN. CODE TIT.

35 § 201.121. Thus,

Hamman's argument that the Agency's May 1, 2008 decision somehow protects it from liability

is wrong. The Board has the authority to grant relief under Count III of Yorkville's Complaint,

and it must deny Hamman's motion to strike/dismiss Count III.

Hamman also completely misrepresents the intention of the Legislature by arguing that the Legislature intended to

protect farms from suits like this one. The Farm Nuisance Suit Act, of which Hamman quotes the policy in page 4

of its motion, provides: "No farm or any of its appurtenances shall be or become a private or public nuisance

because of any changed conditions in the surrounding area occurring after the farm has been in operation for more

than one year, when such farm was not a nuisance at the time it began operation, provided, that the provisions of this

Section shall not apply whenever a nuisance results from the negligent or improper operation of anv farm or its

appurtenances." (emphasis added) 740 ILCS 70/3. Clearly the Legislature did not intend to do away with all

nuisance suits arising from farming operations, but rather only those arising from changed conditions. Moreover,

the Legislature specifically cleared the way for nuisance suits that arise from negligent or improper operation of any

farm.

III. COUNT IV

MUST ALSO STAND BECAUSE IT IS NOT FRIVOLOUS AND

PROVIDES ENOUGH DETAIL FOR HAMMAN TO REASONABLY PREPARE A

DEFENSE

As stated above, a complaint must only include such detail as "to reasonably allow

preparation of a defense." (emphasis added) ILL.

ADMIN. CODE TIT.

35 § 103.204(c). Here,

Count IV, when taken together with the general allegations of Yorkville's Complaint, offers such

description that Hamman is more than able to reasonably prepare a defense. For example,

Yorkville includes dates of when Hamman first applied landscape waste to its fields and when

contamination of groundwater began. See Yorkville Complaint, pg. 1 114 & pg. 16 1167.

Additional information can be obtained through the use of discovery procedures, such as

interrogatories and depositions. Because Yorkville's Complaint reasonably allows Hamman to

prepare its defense, it satisfies the requirements of Section 103.204(c). Therefore, Hamman's

motion must be denied.

Finally, for the same reasons discussed above in Section I(A) and Section

II(B),

the

Board has the authority, pursuant to Section 5(d) of the Act, to conduct enforcement proceedings

upon charges of violations of the Act. 415 ILCS 5/5(d). In Count IV, Yorkville has charged that

Hamman violated several provisions of the Act. A permit is no defense to violations of the Act,

and so, the Agency's May 1, 2008 decision provides Hamman no defense to these allegations.

ILL. ADMIN. CODE TIT.

35 § 201.121. The Board has the authority to determine whether

Hamman violated the Act as charged in Count IV. Therefore, Hamman's motion fails, and it

must be denied.

WHEREFORE, the United City of Yorkville, respectfully requests that the Illinois

Pollution Control'Board deny Hamman Farms' Motion to Strike and/or Dismiss, and grant such

other relief as it deems just and equitable.

Respectfully submitted,

UNITED CITY OF YORKVILLE

Gardiner Koch & Weisberg

53 W. Jackson Blvd., Ste. 950

Chicago, IL 60604

(312) 362-0000

Law Firm ID: 29637