BEFORE THE
ILLINOIS
POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner,
PCB No. 08-95
v.
?
(Appeal of Agency Action)
ILLINOIS
?
ONMENTAL
PROTECTI N AGENCY, and HAMMAN
FARMS,
Respondents.
NOTICE OF FILING
TO: SEE ATACHED SERVICE LIST
PLEASE TAKE NOTICE that on July 30, 2008, we electronically filed with the Clerk of
the Illinois Pollution Control Board, Respondent Hamman Farms' Motion for Leave to File a
Reply Brief Support of its Motion to Dismiss and attached proposed Hamman Farms' Reply
Brief in Sup ort of its Motion to Dismiss, copies of which are attached hereto and hereby served
upon you.
Dated:
Julyi
30, 2008
Respectfully submitted,
On behalf of HAMMAN FARMS
/s/
Charles F. HeLsten
One of Its Attorneys
Charles F. Helsten
Nicola Nelso-i
Hinshaw & ulbertson LLP
100 Park Av nue
P.O. Box 13 9
Rockford, EL 61105-1389
815-490-4906
70566464v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY
OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner,
PCB No. 08-95
v.
?
(Appeal of Agency Action)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
Respondents.
RESPONDENT RAMMAN FARMS' MOTION FOR LEAVE TO FILE A REPLY BRIEF
IN SUPPORT OF ITS MOTION TO DISMISS
NOW COMES Respondent, HAMMAN FARMS, by and through its attorneys, Charles
F. Helsten
d HINSHAW & CULBERTSON LLP, pursuant to 35 M.Adm.Code 101.500(e),
requesting leave to file a Reply brief in support of its Motion to Dismiss, stating as follows:
1.
On July 7, 2008, Respondent Hamman Farms filed a Motion to Dismiss seeking
dismissal of this action based on the Board's lack of jurisdiction and the Petitioner's lack of
standing.
2.
On July 15, 2008, Petitioner filed a Response brief opposing Hamman Farms'
Motion to D' miss.
3.
Because the pending motion to dismiss is entirely dispositive of this action, the
outcome of the motion has enormous significance.
4.
The Petitioner's Response brief is predicated on spurious, fallacious reasoning,
and contains Misrepresentations which have the potential to mislead the Board.
5.
Hamman Farms is at risk to suffer material prejudice if it is not permitted to file a
Reply brief countering the fallacious reasoning and misrepresentations that pervade Petitioner's
brief.
70569559v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
6. I Respondent Hamman Farms accordingly requests permission to file its Reply
brief with th Board, a copy of which is attached hereto.
WHE FORE, Respondent HAMMAN FARMS respectfully requests leave, pursuant to
35 111.Adm.Crade 101.500(e), to file the attached Reply brief, and such other and further relief as
the Board dee ms appropriate and just.
I
Dated: J 1 29, 2008 ?
Respectfully submitted,
On behalf of HAMMAN FARMS
is/
Charles F. Helsten
One of Its Attorneys
Charles F. Htlsten
Nicola Nelso
Hinshaw
&
1ulbertson LLP
100 Park Av nue
P.O. Box 13 9
Rockford, IL 61105-1389
815-490-4900
George Mueller
Mueller Anderson , P.C.
609 Etna Road.
Ottawa, IL 11350
815/431-1500
2
70569559v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED C
I
MUNICIPA
Y OF YORKVILLE, A
CORPORATION,
Complainant,
PCB No. 08-95
(Appeal of Agency Action)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
Respondents.
HAMMAN FARMS' REPLY BRIEF 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 Reply Brief in Support of its
Motion to Di iss, states as follows:
I.?
Petitioner's Response Brief is Predicated on Flawed Logic and a Misrepresentation
of
the
Law
Petiti ner hypothesizes that because the Board has authority to review final
determinations by the Agency, it therefore has authority to review
every
,final determination by
the Agency.
This unfounded theory completely disregards the well-recognized statutory
limitations to Board review of Agency decisions, which have been repeatedly memorialized in
the decisions
of Illinois courts.
Petitioner seemingly believes that the Illinois Appellate Court and Supreme Court are
either mistaken about the specifically defined and limited breadth of the Board's jurisdiction, or
in the alterna
five, that they really did not mean it when they declared, e.g., that, "[i]f the Board
were to beccme involved as the overseer of the Agency's decision-making process through
evaluation of challenges to permits, it would become the permit-granting authority,.
a function
v.
not delegated
to the Board by the Act."
Citizens Utilities Co. of Illinois v. PCB,
265 Ill.App.3d
70569301v1 $90519
Electronic Filing - Received, Clerk's Office, July 30, 2008
773, 780, 63
N.E.2d 1306, 203 111.Dec. 487 (3rd Dist. 1994) (emphasis added), citing
Landfill,
Inc. v. Pollut on Control Bd.,
74111.2d 541, 557, 387 N.E.2d 258, 262-263, 25
?
602, 606-
607 (IlL 1978). Clearly, Petitioner's theory that all final Agency determinations are reviewable
by the Board
Most
appeal to the
is false, and there is no jurisdictional basis for Petitioner's action.
significantly, although a permit applicant whose application has been
denied can
Board, "[t]here are no comparable statutory provisions for Board review on either
substantive or technical grounds of the Agency's
grant of a permit,
thus indicating a legislative
intent not to
Landfill,
74
reiterated tin
provide for such a proceeding."
Citizens Utilities,
265 111.App.3d at 780, citing
1.2d at 557 (emphasis added).' Even as recently
as
July 10, 2008, this Board
there are "no third-party rights to appeal [a] non-hazardous waste permit under
Section 40 of the Act; Section 40(a)(1) grants appeal rights solely to the permit applicant. 415
ILCS 5/40(a)(1)(2006). Third-party appeal rights for hazardous waste permits are granted only
for RCRA permits, and permits granted by the Agency under Section 39.3 of the Act for
hazardous waste sites. 415 ILCS 5/40(b), (c), and (e) 2006."
People of Williamson Co. v. Kibler
Development Corp,
PCB 08-093 at 11 (July 10, 2008).
Petitioner flagrantly disregards and/or ignores the above-referenced precedent, and
continues to itrgue that the Board has jurisdiction to review every final decision by the Agency,
and indeed must do so, lest the Agency 'abuse' its power and "contribute to pollution and misuse
of land." (Pe
itioner's brief at 4). It has accordingly become clear that Petitioner is not dissuaded
by the fact that there is no statutory or other good faith basis for standing or jurisdiction in this
Notably, althf►ugh no permit is at issue here, Petitioner repeatedly characterizes this action as the Agency's
improper granting of a permit.
(See, e.g,
"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.") (Petitioner's
brief at p. 4).
2
70569301v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
action, and
stead, Petitioner continues to pursue its frivolous action, going so far as to serve
discovery on
Hamman Farms that clearly illustrates bad faith with respect to this litigation!
In addition to disregarding its lack of standing and the absence of subject matter
jurisdiction, Petitioner nevertheless argues that because the Board "has the authority to adopt
rules and regulations governing landscape waste compost facilities... [t]his leads to the
conclusion that...the Board must have jurisdictional authority...to adopt rules and regulations
governing 1
area of land
amusing, but
dscape waste compost facilities, and {therefore] the authority to review the subject
ape waste." (Petitioner's brief at 2). Petitioner's simplistic, hopscotch-style logic is
of course it suffers from a fatal flaw: this case does not involve the composting of
landscape waste.
and foremost, Hamman Farms is not a composting operation. A composting
defined by the regulations as "an enterprise engaged in the production and
First
operation is
distribution of end-product compost."
See
35 111.Adm.Code 830.102. Moreover, composting is
defined by the regulations as:
the biological treatment process by which microorganisms
decompose the organic fraction of the waste, producing compost.
(Section 3.70 of the Act.) Land application is not composting.
35 111.Adm.
de 830.102 (emphasis added).
Hamman Farms is not a composting operation, and it does not produce compost. Rather,
Hamman Farms utilizes the land application of landscape waste on its farm
as
soil conditioner
and fertilizer and in that regard it sought a determination from the Agency of the appropriate
agronomic rate at which to apply the material, in light of the farm's soil characteristics and crop
2
See
Hamman
-7.arrns'
Supplement to its Motion for Hearing Officer's Order on Discovery and attachments thereto.
3
70569301v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
needs.3
Lan application of landscape waste
is,
by definition, "not composting."
Id.
Therefore,
Petitioner's laim that the Board's jurisdictional authority to review this case derives from its
authority to egulate composting operations is, at best, misguided. Had Petitioner bothered to
take a look at the relevant regulations, it would realize there is simply no legal basis for its
argument. At noted above, Petitioner has either failed to investigate the basic law governing its
action, or in the alternative, it has decided to misrepresent the law in an attempt to keep its ill-
conceived litigation alive.
Petitioner has continuously ignored the fact that Hamman Farms is not a defined
composting aility, which may explain why Petitioner continuously misinterprets the Agency's
action at iss
here as the granting of a permit. A correct and honest statement of the facts ought
to be at the heart of any valid legal argument.
IL?
Petitioner's Brief Misrepresents Hamman Farm's Argument
In ad 'don to twisting the law, Petitioner also twists Hamman Farms' argument, alleging
that Haulm Farms is asserting that the Board cannot review the Agency's determination of the
appropriate gronomic rate "because it involves technical analysis." (Petitioner's brief at 2).
Hamman F s has not previously – and does not now - argue that the Board lacks the expertise
to make technical determinations. Rather, Hamman Farms' brief in support of its Motion to
Dismiss points out that "the Supreme Court has observed that the legislature delegated to IEPA
brief at p. 5, quoting
Landfill, Inc. v. Pollution Control Bd.,
74 111.2d 541, 554, 387 N.E.2d 258,
262-263, 25 111.Dec. 602, 606-607 (111. 1978)). Hamman Farms' brief further points out that the
Illinois Suprme Court has declared that the legislature vested the Agency – not the Board – with
3
Pursuant to
47
ILCS 5/21(q).
4
the authority to perform 'technical, licensing, and enforcement functions.'" (Hamman Farms'
70569301v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
"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 pol tion sources."
Id.
It is, therefore, the Board's lack of jurisdiction, not the extent of its technical expertise,
that forms the core of Hamman Farms' Motion to Dismiss this action:
Because this technical analysis [of the data concerning the farm's
soil characteristics and crop needs] 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's technical findings.
(Hamman Farms' brief at 7).
The cases cited in Petitioner's Response brief are similarly inapposite and
misrepresented. For example, Petitioner cites
Jurcak v. Environmental Protection Agency,
suggesting t at
Jurcak
supports its position and holds that the Board is authorized to review the
Agency's decision in this case because permit review is "a decision best left to the Board."
(Petitioner's brief at p. 3, characterizing the holding of
Jurcak). Jurcak,
however, involved an
appeal by an
applicant
who was unhappy with a condition that had been imposed by the Agency
in issuing hi! permit; Jercak therefore appealed to the Board in the hope that he could get the
Board to remove the Agency-imposed condition.
Id.
An appeal
by an applicant
who has been
issued a permit with conditions is, of course, one of the types of appeals expressly provided for
under the re lations:
a) The Board is authorized to hear the following types of
adjudicatory cases:
***
2) Permit Appeal. Any person who, pursuant to Section 39 of the
Act (415 ILCS 5139), has been
denied
a
permit by the Agency, or
issued a permit by the Agency with one or more conditions to
5
70569301 vl 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
which that person objects,
may file a petition with the Board for
review of the Agency's action. 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)(1)). (See 35
111.
Adm. Code 105.)
2 111.Adm.0
The
I11.App.3d 3
by a permit
case cited b
jurisdiction
d
e 2175.600(a) (emphasis added).
econd case cited by Petitioner,
Dean Foods Co. v. Pollution Control Bd.,
143
2, 492 N.E.2d 1344 (2nd
Dist. 1986), presents the identical situation, i.e.,
an
appeal
pplicant who was unhappy about a condition imposed by the Agency. Thus, neither
Petitioner in any way stands in support of Petitioner's theory that the Board has
this
matter.
III. Petitioner Improperly Urges the Board to Ignore its Statutory Limitations and
Exerrse Jurisdiction Not Authorized by the Act
The
coup de grace
of Petitioner's brief is its argument that even if the Board lacks
authority to
do so, it should, nonetheless, still review the Agency's determination of the
agronomic rate for Harriman Farms' land in order to prevent "abuses of power such as the one at
issue in this
the Appellat
Board is not
prescribed c'
ase." (Petitioner's brief at p. 4). In a sweeping repudiation of the Supreme Court,
Court, and the Illinois General Assembly, all of whom have concluded that the
uthorized to review the granting of a permit by the Agency except under expressly
umstances, the Petitioner announces that:
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.
(Petitioner's grief
at p. 4).
6
70569301v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
Petitiner's argument, which lobbies for a
de facto
change to Illinois law, should be
directed to the legislature, not to this Board, and the relief sought – that the Board review a
matter it is not authorized to review, and reverse an Agency decision it has no authority to
reverse – fall
s squarely within the definition of frivolous.
See
35 Ill.Adm.Code 101.202, defining
`frivolous' to mean "a request for relief that the Board does not have the authority to grant, or a
complaint that fails to state a cause of action upon which the Board can grant relief."
W. Con usion
Petiti ner filed this action without the requisite (much less any) investigation of the
relevant law or, in the alternative, filed it in contumacious disregard thereof. Petitioner's
assertion that "sound public policy requires the Board to have reviewing authority" over the
Agency's granting of permits, and over this matter in particular, asks the Board to engage in an
extra-legal eercise of jurisdiction in derogation of clear precedent forbidding it, ostensibly to
prevent the Illinois Environmental Protection Agency from running amok and polluting the
State.
Petitioner's real motive, to harass Hamman Farms, is clearly what drives this action, and
its misuse otL the administrative process is deplorable. The Board should accordingly repudiate
Petitioner'sbusive
J
efforts in the strongest terms, and summarily dismiss this action for want of
standing and,or jurisdiction, before the charade of discovery and a hearing inflict further injury
on Respondent Hamman Farms, and before the taxpayers of Illinois are forced to expend more
State resources defending against what is clearly an unjustified, unauthorized Petition.
WIIEFORE, HAMMAN FARMS respectfully requests that the Board dismiss this
action and gr
ant such other and further relief
as
it deems appropriate and just.
7
70569301v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
Dated:
Respectfully submitted,
On behalf of Hamman Farms
One of Its Attorneys
Charles F. H lsten
Nicola Nels4
Hinshaw & Culbertson LLP
100 Park Avenue?
.
P.O. Box 13£19
Rockford, IL 61105-1389
815-490-490?
George Muelier
Mueller Anderson , P.C.
609 Etna Road
Ottawa, IL 611350
8151431-1500
This
document utilized 10170 recycled paper products.
70569301v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that :Yri July 30, 2008, she caused to be served a copy of the foregoing upon:
Mr. John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL f0601
therriag§ipcb.st?tellus
(via electronic filing)
via e-mail
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH & WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago, IL 60604
tgardinera,g1cw-law.com
mlagrotta@gkw-Iaw.com
via e-mail
?
via emaill
Michelle Ryan
?
Bradley P. Halloran
Division of Legal Counsel?
Hearing Officer
Illinois Environmental Protection Agency
?
Illinois Pollution Control Board
1021 N. Grand Avenue East?
James R. Thompson Center, Suite 11-500
P.O. Box 19 76
?
100 w. Randolph Street
Springfield, I 62794-9276?
Chicago, IL 60601
Michelle.Ry @Illinois.gov?
hallorab@ipcb.state.il.us
A copy of th same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postaie prepaid, before the hour of 5:00 p.m., address
?
ove.
PCB No. 08-95
Charles F. Illsten
Nicola A. Ne son
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
70566472v1 890519
Electronic Filing - Received, Clerk's Office, July 30, 2008