BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
HAMMAN FARMS"
Respondents.
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PCB No. 08-96
(Enforcement-Land, Air, Water)
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on November 14, 2008,
we electronically filed with the
Clerk of the TIlinois Pollution Control Board, Respondent's Motion for Reconsideration, a copy
of which is attached hereto and hereby served upon you.
Dated:
November
14,2008
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
ofHAMMAN FARMS
IslNicola Nelson
Nicola Nelson
One
of Its Attorneys
70566463vl 890522 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
HAMMAN FARMS,
Respondent.
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)
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PCB No. 08-96
(Enforcement-Land, Air, Water)
RESPONDENT'S MOTION FOR RECONSIDERATION
NOW COMES the Respondent, HAMMAN FARMS, by and through its attorneys,
Charles F. Helsten and HINSHAW & CULBERTSON LLP pursuant to 35 IlLAdm.Code
101.518, and moving for reconsideration of the Board'sOctober 16, 2008 Order, as to Count IV
of Yorkville'sComplaint, states as follows:
1.
On June 4, 2008, the City of Yorkville ("Yorkville") filed its four-count citizen's
enforcement action against Respondent, Hamman Farms, thereby initiating this action.
2.
On July 8, 2008, Hamman Farms filed a Motion to Strike
or Dismiss portions of
Yorkville's Complaint.
3.
On October 16,2008, the Board granted Hamman Farms' motion in part, granting
Hamman Farms' request to strike Yorkville's request for attorney's fees and costs; granting
Hamman Farms' request to strike allegations that the IEPA violated the law when it determined
the appropriate agronomic rate for Hamman Farms' application
of landscape waste to its fields;
and granting Hamman Fanns' request for dismissal of Count III for failure to meet the pleading
specificity requirements of 35 TIl.Adm.Code 103.204. The Board declined to dismiss Count IV.
4.
Counts III and IV of Plaintiffs Complaint both assert that the application of
landscape waste to fields for use as a soil conditioner and fertilizer, which is a practice
70581028vl 890519 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
authorized by the legislature in the Environmental Protection Act at 415 ILCS 5/21 (q), releases
contaminants into the environment and therefore causes pollution in violation of the Act. Count
III asserts that the application
of landscape waste to farm fields causes pollution because
contaminants are thereby released into the air; Count IV asserts that the application of landscape
waste to farm fields causes pollution because contaminants are thereby released into ground
water. The Board dismissed Count III for failure to meet the pleading requirements
of the Rules,
but failed to dismiss Count IV.
5.
Hamman Farms' Motion to Strike or Dismiss and briefs in support argued that
although Count III alleges the application of landscape waste to farm fields causes "air
pollution," it fails to provide any "dates, location, events, nature, extent, and strength
of
discharges or emissions and consequences alleged to constitute violations of the Act and
regulations," as required by 35 Il1.Adm.Code 103.204(c). Yorkville responded that it had
provided enough specificity to "reasonably allow preparation of a defense" and that this is all the
Rules require. In granting the Motion to Dismiss Count III, the Board explained that Yorkville's
complaint stated "little more than the legal conclusion" that Hamman Farms' application
of
landscape waste caused air pollution because it unreasonably interfered with residents'
enjoyment
of life or property. (Board's order at 21). The Board supported its analysis by citing
. LaSalle Nat'! Trust
v.
Village ofMettawa,
249 Ill.App.3d 550, 557,616 N.E.2d 1297. 1303 (2
nd
Dist. 1993), for the proposition that "legal conclusions unsupported by allegations of specific
facts are insufficient." (Board's Order at 21). The Board further cited
City of Des Plaines
v.
PCB.
60 Il1.App.3d 995, 1000, 337 N.E.2d 114, 119 (1 sl Dist. 1978) which explains that ''pure
conclusions [], even in administrative proceedings, are insufficient." (Board'sOrder at 21).
6.
Count
N,
like Count
III.
proffers only legal conclusions which are unsupported
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70581028v] 890519 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
by allegations of specific facts, and should have, like Count III, been dismissed for failure to
meet the Board'spleading requirements.
7.
As a threshold matter, in declining to dismiss Count IV, the Board states that
"Hamman's argument fails to address Yorkville's allegations that Hamman exceeded the
agronomic rate
of 20 tons per acre per year for some 15 years before the Agency issued the May
1,2008 determination." (Board's Order at 23). However, on a Motion to Dismiss it would have
been impermissible for Hamman Farms
to dispute the facts pled by Yorkville, since a Motion to
Dismiss admits all well pleaded facts. Thus, Hamman Farms hereby makes clear that its silence
regarding that factual allegation is due solely to the procedural posture
of the case at this
juncture.
8.
More importantly, Count IV, like Count III, fails to allege specific facts to support
that Hamman Farms violated the Act, inasmuch as Count IV's"factual" allegations are limited to
the following:
66.
Under Section 3.165
of the Act, the landscape waste that
HANfMAN is applying is a contaminant.
67.
Under Section 3.545
of the Act, HAMMAN's application
of landscape waste is water pollution in that the landscape waste is
a contaminant which is being discharged into ground water.
68.
In
applying the landscape waste, HAMMAN is allowing
the discharge
of contaminant into the environment so as to cause or
tend
to cause water pollution under section 12(a) of the Act.
69.
In applying the landscape waste, HAMMAN is allowing
the deposit
of contaminants so as to create a water pollution hazard
under section 12(d)
ofthe Act.
9.
The pleading deficiency of Count IV is the same as the pleading deficiency of
Count III, inasmuch as Count Ill's "factual" allegations, which appear at paragraphs 58, 59, 60
3
70581028vl 890519 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
and 61, are virtually identical to Count W's "factual" allegations at paragraphs 66. 67, 68 and 69,
but for the substitution
of the assertion that the application of landscape waste caused water
pollution in Count lV, in place
of Count Ill's assertion that applying landscape waste causes air
pollution.
10.
Rather than providing the requisite facts, Count lV and Count III both allege the
same conclusory syllogism:
1.
Landscape waste is a contaminant/releases a contaminant (Count IV
paragraph 66; Count III paragraph 58);
II.
The application of landscape waste to fann fields is pollution because it
leads
to the discharge of a contaminant into ground water (Count W
paragraphs 67-68) / into the environment (Count III paragraph 60);
Ill.
Because Hamman Farms applies landscape waste to its fields, it is
therefore discharging contaminants into the environment (Count IV
paragraph 68-69; Count III paragraph 60).
IV.
Hamman Fanns therefore violated the Act by causing water pollution or a
water pollution hazard (Count IV paragraphs 69, 70) /
by causing air
pollution (Count III paragraph 61).
11.
As the Board observes in its opinion, these "factual" allegations in Count III fail
to meet the specificity requirements of Section 103.204(c). However, just as these "factual"
allegations fail
to meet the Rules' specificity requirements when pled as Count III, the same
"factual" allegations fail to meet the Rules' specificity requirements when pled
as Count IV.
Count IV, like Count III, pleads only legal conclusions. Thus, Count IV fails to meet the
pleading requirements under the Rules and it should, like Count
ill,
have been dismissed for
failure
to plead with requisite specificity.
12.
The Board's Order suggests that
it
distinguishes between Counts III and IV on the
basis that the Act prohibits conduct that poses
"a threat
H
to water pollution. (Board's Order at p.
4
70581028vl 890519 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
24). However, the fact that the Act prohibits the ''threat»of water pollution does not negate the
pleading requirements
of35 ill.Adm.Code 103.204, which do not provide an exemption from the
specificity requirements for complaints alleging
'Threatened" pollution. Rather, Section 103.204
declares in unequivocal terms that an enforcement complaint must contain:
The dates, location, events, nature, extent. duration and strength
of
discharges or emissions and consequences alleged to constitute
violations
ofthe Act and regulations.
35 III.Adm.Code 103.204(c)(2).
13.
Because Count IV of Yorkville's Complaint fails to meet the specificity
requirements
of Section 103.204(c)(2), the Board's finding that Count IV provided sufficient
specificity
to survive a motion to dismiss for failure to comply with 35 IlLAdm.Code
103.204(c)(2) reflects a misapplication
of the relevant law. The Board is accordingly urged to
reconsider the application
of 35 IlLAdm.Code 103.204(c)(2) to Count IV of Yorkville's
Complaint, and to reconsider its denial ofHamman Fanns' request for dismissal of Count IV.
Dated:
November 14,2008
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
5
Respectfully submitted,
On
behalfofHamman Farms
lsi
Nicola Nelson
One
of Its Attorneys
70581028vl 890519 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
AFFIDAVIT OF SERVICE
The undersigned, pUrsuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
Procedure, hereby under penalty
ofpeIjury under the laws of the United States ofAmerica,
certifies that on November 14, 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 60601
(via electronic filing)
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.iI.us)
Via electronic filing and/or e-mail delivery.
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
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH
&
WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago.UL 60604
tgardiner@gk:w-law.com
mlagrotta@gkw-Iaw.com
70567539v] 890522 66799
Electronic Filing - Received, Clerk's Office, November 14, 2008
