BEFORE

THE

ILLINOIS

UNITED

CITY

OF

YORKVILLE,

A

MUNICIPAL

CORPORATION,

Petitioner,

V.

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

and

HAMMAN

FARMS,

Respondents.

CEVE’

CLERKS

OFFICE

POLLUTION

CONTROL

BOARD

DEC

Ol

2008

)

Pollution

STATE

OF

Control

ILLINOIS

Board

)

)

PCB

No.

08-96

)

Enforcement-Land,

Air, Water

)

)

)

)

)

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 YORKVILLE’S

RESPONSE

TO

RESPONDENT’S

MOTION

TO

DISMISS

COUNTS

I AND

II

AS DUPLICATIVE,

copies

of which

are

herewith

served

upon

you.

Dated: December

1,

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

Respectfully

submitted,

UNITED

THIS FILING

IS SUBMITTED

ON RECYCLED

PAPER

---

CERTIFICATE

OF

SERVICE

I,

Michelle

M.

LaGrotta,

the

undersigned

certify

that

on December

1, 2008,

1 have

served

the

attached

YORKVILLE’S

RESPONSE

TO

RESPONDENT’S

MOTION

TO

DISMISS

COUNTS I AND

II AS

DUPLICATIVE,

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)

Charles

F. Heisten

Nicola

A. Nelson

Hinshaw

&

Culbertson

100

Park Avenue

P.O.Box1389

Rockford,

IL

61105-1389

(via

email

to:

NNelson@hinshawlaw.com

and

CHelsten@hinshawlaw.com,

and

U.S.

Mail)

ihi

//47/

Michelle

M.

LaGrotta

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

12008

UNITED

CITY

OF YORKVILLE,

A

)

STATE

OF

ILLINO,

lIUtiOn

Control

MUNiCIPAL

CORPORATION,

)

8o$

Complainant,

)

)

PCB

No.

08-96

v.

)

(Enforcement-Land,

Air,

Water)

)

HAMMAN

FARMS,

)

Respondent.

)

YORKVILLE’S

RESPONSE

TO

RESPONDENT’S

MOTION

TO

DISMISS

COUNTS

I

AND

II

AS DUPLICATIVE

NOW

COMES,

the

Complainant,

United

City

of

Yorkville,

by

and

through

its

attorneys,

Gardiner

Koch

Weisberg

& Wrona,

and

for

its

response

to

Respondent’s

Motion

to

Dismiss

Counts

I

and

II

as

Duplicative,

it

states

as

follows:

I. BECAUSE

THE

BOARD

RULED

YORKVILLE’S

COMPLAINT

IS

NOT

DUPLICATIVE

IN

THE

BOARD’S

OPINION

AND

ORDER

OF

OCTOBER

16,

2008,

IT

MUST

DENY

THIS

MOTION

On

July

8,

2008,

Respondent

Hamman

Farms

filed

a

Motion

to

Strike

and/or

Dismiss

portions

of

the

United

City

of

Yorkville’s

Complaint,

which

was

filed

on

June

4,

2008.

That

motion

argued,

inter

alia,

that

Yorkville’s

Complaint

should

be

dismissed

as

duplicative.

On

October

16,

2008,

the

Illinois

Pollution

Control

Board

denied

Hamman

Farms’

motion

because

it

found

the

Complaint

was

not

duplicative.

See

page

26

of

the

October

16,

2008

Opinion

and

Order

attached

hereto

as

Exhibit

“A.

“.

In

Footnote

11

of its

Opinion

and

Order,

the

Board

specifically

stated

that

“the Board

takes

notice..

.of

Yorkville’s

statements

made

in

a

response

filed

in

PCB

08-95,

that

‘IEPA

had issued

violation

notices

to

Hamman

and

rejected

Hamman’s

Compliance

Commitment

Agreement’

and

that

‘[ojn

September

17,

2008

that

the

Attorney

General

of

the

State

of

Illinois

filed

a

Complaint

for

injunctive

relief

and

other

civil

penalties

against

Hamman

for

these

violations.”

When

the

Board

took

notice

of

that information,

the

---

information

that the

Illinois

Attorney

General

filed a

complaint

for

these

violations

in

the

Illinois

Circuit

Court

became

a

part

of

the

record

for these

proceedings

in

PCB

08-96.

The Board

then

denied

the

motion,

stating

“[bjased

on

the

information

in

this record.

.

.the

Board

finds

that

the

Yorkville’s

complaint,

so

modified,

is

neither

frivolous

nor

duplicative.”

Consequently,

the

Board

has

already

examined

the

issue

of

whether

Yorkville’s

complaint

is

duplicative

of

the

Complaint

filed

by

the Illinois

Attorney

General

on

September

17,

2008,

and

the

Board

has

held

that this

action

is

pp

duplicative

of

that

of

the

Illinois

Attorney

General’s

action.

Because

the

Board

has

ruled

previously

that

Yorkville’s

Complaint

is

not duplicative,

Hamman

Farms’

Motion

to

Dismiss

Counts

I

and

II

as

Duplicative

must

be

stricken

or

denied.

II.

HAMMAN

FARM’S

MOTION

TO

DISMISS

MUST

BE

DENIED

BECAUSE

IT

WAS

FILED

MORE

THAN

THIRTY

DAYS

AFTER

HAMMAN

FARMS

WAS

SERVED

Pursuant

to

section

101.506,

any

motion

to

dismiss

must

be

filed

within

thirty

days

after

service

of

the

challenged

document,

unless

the

Board

determines

material

prejudice

would

result.

Here,

Yorkville

filed

its

Complaint,

the

challenged

document,

on

June 4,

2008.

Hamman

Farms

was

served

with

the

Complaint

on

or

about

June

18,

2008,

and

Section

101.506’s

thirty-day

deadline

ran

on

July

18, 2008.

Hamman

Farms

filed

its

Motion

to

Dismiss

Counts

I

and

II

as

Duplicative

on

November

17,

2008,

which

was

more

than

five

months

after

Hamman

Farms

was

served.

Furthermore,

Hamman

Farms

is

not

entitled

to

an

extension

because

no

material

prejudice

would

result

should

the

Board

strike

Hamman

Farms’

motion.

In

fact,

Hamman

Farms

does not

even

allege

any

material

prejudice

that

would

entitle

Hamman

Farms

to

file

this

motion

beyond

the

thirty-day

time

period

imposed

by

Section

101.506.

Because

Hamman

Farms

filed

2

---

its

motion to

dismiss

beyond

the

thirty-day

time

period,

the

Board

must

strike

or

deny

1-lamman

Farm’s

Motion

to

Dismiss.

1

III. BECAUSE

VILLAGE

OF

DePUE

DOES

NOT APPLY

TO

THESE

PROCEEDINGS,

THE

MOTION

MUST BE DENIED

1-lamman

Farms argues

that

pursuant

to

Seventh

Circuit’s

ruling

in

Village

of

DePue,

Ill.

V.

Exxon

Mobil Corp.,

537

F.3d

775

(7’

Cir.

2008), Yorkville’s

complaint

should

yield

to

the

Attorney

General’s

action.

However,

the

circumstances

before

the

Seventh

Circuit

in

Village

of

DePue

are

distinguishable

to

the

circumstances

now

pending

before

the

Board.

Thus,

the

holding

in

Village

of

DePue

does not

apply

here.

In

Village

of

DePue,

the

Illinois

Attorney

General

filed

a

suit

against

Exxon

for

alleged

violations

of

the

Illinois

Environmental

Protection

Act

that

stemmed

from

an

environmentally

hazardous

site

in

the

Village

of

DePue,

Illinois.

537

F.3d at

780.

The state

court

entered

an

interim

consent

order

as

a

partial

settlement

between

the

parties

that

required

Exxon

to

perform

a

phased

investigation

and

perform

certain

remedial

measures.

Then

in

2006,

the

Village

of

DePue

posted

Notices

to

Abate

Nuisance

at

the

site.

Id.

at

781. Through

these notices,

the

Village

sought

to

impose

immediate

site-wide

clean-up

obligations

on

Exxon.

4.

When

Exxon

failed

to

comply

with

the

notices,

the

Village

filed

a

complaint

in

state

court

based

on

the

Village’s

nuisance

ordinance.

id.

Exxon

moved

to

dismiss

the

Complaint

in

part because

the

Village’s claims

were

preempted

by

the

Illinois

Environmental

Protection

Act.

14

at778.

In

affirming

the

District

Court’s

holding

that

the

Village’s

claims

were

preempted,

the

Seventh

Circuit

found

that

“[t]he

Village’s

application

of

its

nuisance

ordinance

in

this

case

is

overreaching

because

it

attempts

to

regulate

an

environmental

hazard

that

is

not

Hamman

Farms

didn’t

even

bother

tofile

its

motion

on

this

basis

within

30

days

of

receiving

notice

of

the

Attorney

General’s

Complaint.

3

---

local

in

nature

and

that

already

is

subject

to

a

cleanup

under

the

authorization

and

the

direction

of

the

state.”

Hamman

Farms

correctly

states

that

the

Act

“establishes

‘a

unified,

state-wide

program

supplemented

by private

remedies,

to

restore,

protect,

and

enhance

the

quality

of

the

environment,’

and

specifically,

authorizes

the Illinois

Attorney

General

to

‘institute

a

civil

action

for

injunction,

prohibitory

or

mandatory,

to

restrain

violations

of

this Act,.

.or

to

require

such

other

actions

as

may

be

necessary

to

address

the

violations

of

this

Act...”

However,

Hamman

Farms

omits

a

key element

of

the

Act,

namely

that

the

Act

also

allows

citizen

enforcement

actions.

Pursuant

to

section

3

1(d) of

the Act,

“[a]ny

person

may file

with

the

Board

a

complaint,

meeting

the requirements

of

subsection

(c)

of

this

Section,

against

any

person

allegedly

violating

this

Act,

any rule

or

regulation

adopted

under

this

Act,

any

permit

or

term

or

condition

of

a

permit,

or

any

Board

order.”

As

a

result,

unlike

the

matter

in

Village

of

DePue,

Yorkville

is

not

pursuing

action that

conflicts

with that

of

the

Attorney

General’s

nor

is

Yorkville

attempting

to

enact

or

pursue

relief

under

an

ordinance

that

Yorkville

did

not

have

the

authority

to

enact.

415

ILCS 5/31(d).

Rather,

Yorkville

is

seeking

relief

in

accordance

with

those

measures

that

the

Illinois

legislature

deemed

appropriate

for

a

citizen.

Because

there

is

no

local

ordinance

in

conflict

with

a

statute,

there

can

be

no

issue

of

preemption.

Thus,

Village

of

DePue

does

not

apply

to

these proceedings,

and

Hamman

Farms’

Motion

to

Dismiss

must

be

denied.

IV.

THE ACTIONS

ARE

NOT

DUPLICATIVE

Although

some

of

the

factual

allegations

of

the

Attorney

General’s

Complaint

are

similar,

Yorkville’s

complaint

is

not

duplicative

of

the

Attorney

General’s

Complaint.

The

Board

considers

a

complaint

to

be

duplicative

if

it

is

“identical

or

substantially

similar

to

one

brought

before

the

Board

or

another

forum.”

35

ILL.

ADMIN.

CODE

§

101.202.

Here,

Yorkville’s

4

---

Complaint

includes

allegations

that

Hamman

Farms

violated

the

Illinois

Environmental

Protection

Act

since

approximately

1993.

On

the

other

hand,

the

Attorney

General’s

Complaint

contains

allegations

that

Hamman

Farms

violated

the

Act only

since

September

21,

2007.

With

Yorkville covering

almost

fourteen

additional

years

of

alleged

violations

compared

to the

Attorney

General’s

one year,

the

two

complaints

can

not

be

considered

substantially

similar.

Accordingly,

Yorkville’s Complaint

is

not duplicative,

and

Hamman’s

Farms

Motion

to

Dismiss

fails.

V.

CONCLUSION

In

its

Opinion

and

Order

of

October

16,

2008,

the

Board

examined

whether

Yorkville’s

Complaint

was

duplicative.

At

the

time

of

the

Board’s

ruling,

evidence

that

the

Illinois

Attorney

General had

filed

a complaint

alleging

similar

violations

was

part

of

the

record

of

these

proceedings. Taking

into

account

the entire

record,

the

Board

found

that

Yorkville’s

Complaint

was

not duplicative.

In addition,

Hamman

Farms

failed

to

comply

with

the time

limits

imposed

by

the

Board

in

Section

101.506

of Title

35

of the

Illinois

Administrative

Code.

Because

the

Board

already

ruled

on

this

issue

and

because

Hamman

Farms

failed

to

comply

with

§

101.506,

the

Board

must

strike

or

deny

Hamman

Farms’

Motion

to

Dismiss

Counts

I and

II

as

Duplicative. More

importantly

though,

Hamman

Farms’

arguments

fail

because

Village

of

DePue,

Ill.

v.

Exxon

Mobil

Corp.

does

not apply

to

these

circumstances

and

the

Attorney

Generals’ Complaint

is not

substantially

similar

to

Yorkville’s.

Therefore,

the

Board

must

deny

Respondent

Hamman

Farms’

Motion

to

Dismiss

because

Yorkville’s

Complaint

is

not

duplicative.

WHEREFORE,

for

all

the

above-mentioned

reasons,

the

United

City

of

Yorkville

respectfully

requests

the

Illinois

Pollution

Control

Board

to

strike

or deny

the

Respondent’s

5

---

Motion

to

Dismiss

Counts

I

and

II as

Duplicative

and

grant

such

other

relief

as

the

Board

Deems

just

and

equitable.

Dated:

December

1,

2008

Thomas

G. Gardiner

Michelle

M.

LaGrotta

Gardiner

Koch

Weisberg

& Wrona

53

W Jackson

Blvd.,

Ste.

950

Chicago,

IL

60604

(312)

362-0000

Law

Firm

ID:

29637

Respectfully

submitted,

UNITED

6

---

ILLINOiS

POLLUTION

CONTROL

BOARD

October

16,

2008

UNITED

CITY

OF

YORKVILLE,

a

municipal)

corporation,

)

)

Complainant,

)

v.

)

PCB

08-96

)

(Citizen’s

Enforcement—

Land,

Air,

HAMMAN

FARMS,

)

Water)

)

Respondent.

)

OPINION

AND

ORDER

OF

THE

BOARD

(by T.E.

Johnson):

Today

the

Board

partially

grants

and

partially

denies

Hamman

Farms’

motion

to

strike

or

dismiss

portions

of

United

City

of

Yorkville’s

enforcement

complaint.

In

addition,

the

Board

finds

that

the

complaint,

as

amended

by this

order,

is

neither

duplicative

nor

frivolous

and

accepts

the

modified

complaint

for

hearing.

Hamman

Farms

has

60

days

from

its

receipt

of

this

order

to

file

an

answer.

On June

4,

2008,

United

City

of

Yorkville

(Yorkville)

filed

a

four-count,

citizen’s

enforcement

complaint

against

Hamman

Farms

(Hamman)

concerning

Hamman’s

application

of

landscape

waste

to

Hamman’s

farmland

in

Kendall

County.

Yorkville

alleges

that

Hamman

has

violated

provisions

of

the

Environmental

Protection

Act

(Act)

(415

1LCS

5

(2006))

prohibiting

land,

air,

and

water

pollution

and

unpermitted

waste

handling

activities.

On

July

8,

2008,

Hamman

filed

a

motion

to

strike

or

dismiss

most

of

Yorkville’s

complaint.

Yorkville

filed

a

response

on

July 22,

2008.

On

August

1,

2008,

Hamman

filed

a

motion

for

leave

to

file

a

reply,

attaching

the

reply.

Hamman’s

motion

for

leave

to

file,

which

Yorkville

did

not

oppose,

is

granted.

The

Board

grants

Hamman’s

motion

to

strike

from

Yorkville’s

complaint

the

allegation

that

the

Illinois

Environmental

Protection

Agency(Agency)

has

violated

the

Act.

The

Board

also

grants

Hamman’s

motion

to

dismiss

Yorkville’s

air

pollution

count

as

pled

without

sufficient

factual

allegations.

Further,

the

Board

grants

Hamman’s

motion

to

strike

as

frivolous

Yorkville’s

requests

for

attorney

fees

and

costs.

The

Board

otherwise

denies

Hamman’s

motion

to

strike

or

dismiss

and

accepts

for

hearing

Yorkville’s

complaint,

as

modified

by

today’s

decision.

The

reasoning

behind

the

Board’s

rulings

is

detailed

below.

Yorkville

is

not

precluded

from

seeking

leave

to

file

an

amended

complaint

to

remedy

the

pleading

deficiencies

of

its

air

pollution

count.

In

this

opinion,

the

Board

first

sets

forth

a

key

provision

of

the

Act

before

describing

the

pleadings.

Next,

the

Board

provides

the

applicable

legal

framework,

including

a

discussion

of

citizen’s

enforcement

actions

and

the

standards

that

apply

to

motions

to

strike

or

dismiss

pleadings.

The

Board

then

rules

on

Hamman’s

motion

and

determines

whether

Yorkville’s

complaint

can

be

accepted

for

hearing.

---

2

SECTION

21(g) OF

THE

ACT

Because

Section 21(q)

of the

Act (415

ILCS 5/21(q)

(2006))

is central

to this

enforcement

action,

the Board

sets

forth

the provision

here

in its entirety

to enlighten

the

summary

of pleadings

that follow:

No

person

shall:

***

(q)

Conduct

a

landscape

waste

composting

operation

without

an Agency

permit,

provided,

however,

that

no

permit shall

be required

for

any

person:

(1) conducting

a

landscape

waste

composting

operation

for

landscape

wastes

generated

by

such person’s

own activities

which

are stored,

treated

or disposed

of

within the

site where

such

wastes

are

generated;

or

(2)

applying

landscape

waste

or composted

landscape

waste at

agronomic

rates;

or

(3)

operating a

landscape

waste

composting

facility

on

a farm,

if

the

facility

meets all of

the

following

criteria:

(A) the

composting

facility

is

operated

by the

farmer on

property

on

which

the

composting

material

is utilized,

and

the

composting

facility

constitutes

no

more than

2%

of the

property’s

total

acreage,

except

that the Agency

may

allow

a higher

percentage

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;

(B) the

property

on which

the

composting

facility

is located,

and

any

associated

property

on which

the compost

is used,

is

principally

and

diligently

devoted

to

the

production

of agricultural

crops and

is

not owned,

leased

or otherwise

controlled

by

any

waste

hauler

or

generator

of nonagricultural

compost

materials,

• and the

operator

of the

composting

facility

is not

an employee,

partner,

shareholder,

or in any

way

connected

with

or controlled

by

any

such waste

hauler

or generator;

(C)

all compost

generated

by

the composting

facility

is

applied

at

agronomic

rates

and used

as mulch,

fertilizer or

soil conditioner

on

land

actually

farmed

by

the

person operating

the composting

facility, and

the

finished

compost

is

not

stored

at the

composting

site

for a period

longer

than

1 8

months

prior

to

its application

as

mulch,

fertilizer,

or

soil

conditioner;

---

3

(F))

the

owner

or

operator,

by

January

1,

1990

(or

the

January

1

Following

commencement

of

operation,

whichever

is

later)

and

January

1

of

each

year

thereafter,

(i)

registers

the

site

with

the

Agency,

(ii)

reports

to

the

Agency

on

the

volume

of

composting

material

received

and

used

at

the

site,(iii)

certifies

to

the

Agency

that

the

site

complies

with

the

requirements

set

forth

in

subparagraphs

(A),

(B)

and

(C)

of

this

paragraph

(q)(3),

and

(iv)

certifies

to

the

Agency

that

all

composting

material

was

placed

more

than

200

feet

from

the

nearest

potable

water

supply

well,

was

placed

outside

the

boundary

of

the

10-year

floodplain

or

on

a

part

of

the

site

that

is

floodproofed,

was

placed

at

least

1/4

mile

from

the

nearest

residence

(other

than

a

residence

located

on

the

same

property

as

the

facility)

and

there

are

not

more

than

10

occupied

non-farm

residences

within

1/2

mile

of

the

boundaries

of

the

site

on

the

date

of

application,

and

was

placed

more

than

5

feet

above

the

water

table.

For

the

purposes

of

this

subsection

(q),

“agrononlic

rates”

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

5/21(q)

(2006).

The

Act

defines

“landscape

waste”

as

“all

accumulations

of

grass

or

shrubbery

cuttings,

leaves,

tree

limbs

and

other

materials

accumulated

as

the

result

of

the

care

of

lawns,

shrubbery,

vines

and

trees.”

415

ILCS

5/3.270

(2006).

“Compost”

is

defined

as

“the

humus-like

product

of

the

process

of

composting

waste,

which

may

be

used

as

a

soil

conditioner.”

415

ILCS

5/3.150

(2006).

“Composting”

means

“the

biological

treatment

process

by

which

microorganisms

decompose

the

organic

fraction

of

waste,

producing

compost.”

415

ILCS

5/3.155

(2006).

“Land

application

is

not

composting.”

35

III.

Adm.

Code

830.102

(definition

of”composting”).

“Land

application”

is

defined

as

“the

spreading

of

waste,

at

an

agronomic

rate,

as

a

soil

amendment

to

improve

soil

structure

and

crop

productivity.”

35

111.

Adm.

Code

830.102.

PLEADINGS

Yorkville’s

Complaint

Yorkville

makes

a

number

of

“general

allegations”

in

its

17-page

complaint

(Comp.)

before

setting

forth

four

counts

of

alleged

violations.

Comp.

at

1-5.

---

4

Location

Yorkville

is

an

Illinois

municipal

corporation

located

in

Kendall

County

and,

according

to

the

complaint,

Hamman

is

a

farm

located

on

approximately

2,200

acres

of

land

in

Kendall

County,

where

Hamman

grows

crops

of

soybeans,

wheat,

and

corn.

Comp.

at

1.

Registered

Landscape

Waste

Composting

Facility

On

a

Farm

Yorkville

claims

that

in

approximately

1993,

Hamman

registered

with

the

Agency

as

an

“On-Site

Compost

Landscape

Waste

Compost

Facility”

under

the

Section

21

(q)(3)

exemption

from

permitting.

Comp.

at

1.

The

complaint

asserts that

Hamman,

as

part

of

its

farming

operations,

receives

landscape

waste

from

off-site,

grinds

the

landscape

waste

in

a

tub

grinder,

and

then

applies

the

material

to

its

farm

fields.

Id.

at

2.

Yorkville

alleges that

since

registering

as

an

“On-Site

Compost

Landscape

Waste

Compost

Facility,”

Hamman

has

filed

with the

Agency

annual

reports

required

of

such

on-farm

facilities

(citing

35

III.

Adm.

Code

830.1

06(b)(2)).

Id.

According

to

Yorkville,

Hamman

has

certified

that

for

the

years

2002,

2003,

2004,

2005,

and

2006,

Hamman

received

landscape

waste

in

the

amounts

of

157,391

cubic

yards,

174,630

cubic

yards,

266,441

cubic

yards,

192,532

cubic

yards,

and

222,239

cubic

yards,

respectively.

Id.

Agronomic

Rate

of

Applying

Landscape

Waste

The

complaint

alleges

that

in

approximately

1992 or

1993,

Hamman

applied

to

the

Agency

for,

but

was

denied,

permission

to

apply

landscape

waste

at

“rates

greater

than the

agronomic

rate

of

twenty

(20)

tons

per

acre per

year.”

Comp.

at

2.

Yorkville

states that

applying

landscape

waste

to

a

field

at

agronomic

rates

results

in

“application

measurements”

of

3/4

of

one

inch

in

thickness.

Id.

Yorkville

alleges

that

since

Hamman registered

as

a

compost

facility,

Hamman

has

applied

landscape

waste

at

rates

resulting

in

application

measurements

greater

than

3/4

of

an

inch,

and

Agency

inspectors

have

on

several

occasions

found

litter

mixed

with

the

landscape

waste

in

Hamman’s

fields.

Id.

Yorkville

further

alleges

that

since

Hamman

began

applying

landscape

waste to

its

fields,

the

Agency

has

received

complaints

of

“strong

and

offensive

odors”

around

Hamman.

Id.

Agency

Inspection

and

Violation

Notice

According

to

the

complaint,

Agency

personnel

inspected

Hamman’s

farm

on

October

17,

2007.

Comp.

at

3.

Yorkville

claims

that

during

the

inspection,

the

Agency

inspectors

observed

the

following:

(1)

the

landscape

application

rate

was

2.5

inches to

3.0

inches

thick;

(2)

numerous

flies

were

present

where

landscape

waste

had

been

applied;

and (3)

“[gjeneral

refuse”

was

in

the

landscape

waste.

Id.

On

November

1

5,

2007,

Yorkville

continues,

the

Agency

issued

a

violation

notice

to

1—lamman,

citing

the

following

violations:

a.

Section

2

1(a)

of

the

Act:

HAMMAN

openly

dumped

landscape

waste

and

general

refuse.

HAMMAN

did

not

apply

landscape

waste at

agronomic

rates.

b.

Section

2

1(d)

of

the

Act:

HAMMAN

openly

dumped

landscape

waste

and

---

5

general

refuse.

I-IAMMAN

did

not

apply

landscape

waste

at

agronomic

rates.

1—lAM

MAN

conducted

the

aforementioned

activities

without

a

permit

issucd

by

the

Agency.

c.

Section

21(p)

of

the

Act:

HAMMAN

openly

dumped

litter,

and

litter

was

commingled

with

the

landscape

waste.

d.

35

Ill.

Admin.

Code

§807.201:

HAMMAN

openly

dumped

landscape

waste

and

general

refuse.

HAMMAN

did

not

apply

landscape

waste

at

agronomic

rates.

HAMMAN

conducted

the

aforementioned

activities

without

a

developmental

permit

granted

by

the

Agency.

e.

35111.

Admin.

Code

§807.202:

HAMMAN

openly

dumped

landscape

waste

and

general

refuse.

1-JAM

MAN

did

not

apply

landscape

waste

at

agronomic

rates.

HAMMAN

conducted

the

aforementioned

activities

without

a

developmental

permit

granted

by

the

Agency.

Id.

at

3-4.

The

complaint

alleges

that

the

Agency’s

violation

notice

specified

“‘suggested

resolutions,’”

including:

a.

Immediately

cease

all

open

dumping;

b.

Immediately

remove

all

litter/general

refuse

from

incoming

loads

of

landscape

waste

prior

to

placing

into

the

tub

grinder.

A

second

screening

of

the

landscape

waste

must

be

conducted

prior

to

being

applied

to

the

farm

fields.

If

necessary,

a

third

screening

must

be

conducted

prior

to

the

landscape

waste

being

tilled

into

the

field;

c.

Immediately

apply

landscape

waste

at

agronomic

rates

(three

quarters

of

one

inch

in

thickness).

Daily

written

agronomic

rate

calculations

must

be

maintained

for

three

years;

and

d.

Immediately

calculate,

on

a

daily

basis,

the

percentage

of

non-landscape

waste.

These

calculations

must

be

maintained

for

three

years.

Comp.

at

4.

Yorkville

asserts

that

following

the

violation

notice,

Donald

J.

Hamman

admitted

at

a

meeting

with

the

Agency

that

Hamman

was

applying

landscape

waste

at

a

rate

greater

than

20

tons

per

acreper

year.

Comp.

at

4.

On

March

5,

2008,

according

to

Yorkville,

the

Agency

rejected

Hamman’s

Compliance

Commitment

Agreement

because

Hamman

“failed

to

agree

to

apply

landscape

waste

at

agronomic

rates

(twenty

(20)

tons

per

acre

per

year)”

and

failed

to

calculate

the

percentage

of

non-landscape

waste

on

a

daily

basis;

id.

at

4-5.

---

6

2008

Application

to

Apply

Landscape

Waste

at

Greater

Than

20

Tons

Per

Acre

Per

Year

The

complaint

states

that

on

April

10,

2008,

1-lamman

submitted

to

the

Agency a

rcquest

for

permission

to

apply

landscape

waste

at

rates

greater

than

20

tons

per

acre

per

year.

1-lamman

submitted

a

supplemental

application

on

April

16,

2008. On

May

1,2008,

the

Agency approved

Flamman’s

request

to

“raise the

agronomic

rate.” Comp.

at

5.

Count

I—Landscape

Waste

Mixed

with

Litter/General

Refuse

In

count

I

of

the

complaint,

Yorkville

alleges

that

Hamman

has

violated

Sections

2

1(a),

21(d)(1),

21(d)(2),

21(e),

and

2l(p)(l)

of

the

Act

(415

ILCS

5/21(a),

21(d)(1),

21(d)(2),

21(e),

21(p)(l)

(2006))

by

applying

landscape

waste

mixed

with

litter

and

general

refuse

to

its

farm

fields

and

then

allowing

the

litter

and

general

refuse

to

remain.

Comp.

at

7-8.

Yorkville

maintains

that

Hamman

has

allowed open

dumping,

conducted

waste-storage

and

waste-disposal

operations

without

a

permit

and

in

violation

of

the

Act

and

regulations,

and

allowed

its

farm

to

become

a

waste

disposal

site.

Id.

Count

lI—Landscape

Waste

Violations

Count

II

of

the

complaint

alleges that

Hamman

has

violated

Sections

2

1(a),

21(d)(1),

21(d)(2),

21(e),

and

21(q)

of

the

Act

(415

ILCS

5/21(a),

21(d)(1),

21(d)(2),

21(e), 2l(q)

(2006)).

Comp.

at 12.

Yorkville

states

that

“landscape

waste”

constitutes

“waste”

as

defined

in

Section

3.535

of

the

Act

(415

ILCS

5/3.535

(2006)).

Id.

at

12.

Yorkville

then

asserts

that

since

Hamman

began

applying

landscape

waste to

its

farm

fields,

Hamman

has

applied

landscape

waste

at

rates

greater than

the

agronomic

rate

of

20

tons

per

acre

per

year.

According

to

count 11,

Hamman

has

allowed

open

dumping,

conducted

waste-storage

and

waste-disposal

operations

without

a

permit

and

in

violation

of

the

Act

and

regulations,

allowed

its

farm

to

become

a waste

disposal

site,

and

failed

to

obtain

a landscape

waste

composting

operation

permit

or

qualify for

an

exemption

from

permitting

under

Section

21(q)(2)

or

(q)(3).

Id.

Yorkville

also

asserts

that

“the

Agency’s

grant

of

permission

allowing

HAMMAN

to

apply

landscape

waste

at

rates

up

to

eighty

(80)

tons

per

acre

per

[]

year

violates

the

Act

and

regulations.”

Comp.

at

12:

Count

Ill—Air

Pollution

Yorkville

alleges

in

count

Ill

of

the

complaint

that

Hamman

has

violated

Section

9(a)

of

the

Act

(415

ILCS

5/9(a)

(2006))

through

its

application

of

landscape

waste.

Specifically,

Yorkville

states

that

“HAMMAN’s

application

of

landscape

waste

is

a contaminant.”

Comp.

at

14.

“In

applying

the

landscape

waste,”

Hamman

has

allowed

the

discharge

of

a

contaminant,

odor,

into

the

environment

so

as

to

cause

air

pollution

by

unreasonably

interfering

with

Yorkville’s

residents’

use

and

enjoyment

of

life

and

property.

Id.

---

7

Count

IV—Water

Pollution

Count

IV

of

the

complaint

ailcges

that

1-lamman

has

violated

Sections

12(a)

and

12(d)

of

the

Act

(415

ILCS

5/12(a),

(d)

(2006)).

Comp.

at

16.

Yorkville

asserts

that

“the

landscape

waste

that

HAMMAN

is

applying

is

a

contaminant”

and

that

the

landscape

waste

is

“being

discharged

into

ground

water.”

Id.

According

to

count

IV,

Harnman,

“[i]n

applying

the

landscape

waste,”

is

allowing

both

the

discharge

of

a

contaminant

into

the

environment

so

as

to

cause

or

tend

to

cause

water

pollution,

and

the

deposit

of

a

contaminant

so

as

to

create

a

water

pollution

hazard.

ld.

Relief

Requested

For

each

of

the

four

counts

of

the

complaint,

Yorkville

asks

the

Board

to

order

Hamman

to

cease

and

desist

from

further

violations

and

to

pay

a

civil

penalty

of

$50,000

for

each

violation

and

an

additional

civil

penalty

of

$10,000

for

each

day

during

which

each

such

violation

continued.

Comp.

at

9,

13,

15,

7.

Yorkville

also

requests

with

each

count

that

the

Board

award

Yorkville

“its

costs

and

reasonable

attorney’s

fees.”

Id.

Hamman’s

Motion

to

Strike

or

Dismiss

In

its

motion

(Mot.),

Hamman

moves

the

Board

to

strike

or

dismiss

counts

II,

111,

and

IV

of

Yorkville’s

complaint,

as

well

as

Yorkville’s

requests

for

attorney

fees

and

costs.

Mot.

at

7.

Count

II—

Landscape

Waste

Violations

Hamman

argues

that

Yorkville’s

complaint

is

“largely

duplicative”

of

Yorkville’s

simultaneously

filed

petition

for

review

in

PCB

08-95,

United

City

of

Yorkville

v.

IEPA

and

Hamman

Farms.

Mot.

at

2.

There,

Hamman

continues,

Yorkville

alleges

that

the

Agency

“violated

the

law”

when

it

allowed

Hamman

to

apply

landscape

waste

at

the

rate

of

up

to

80

tons

per

acre

per

year.

Id.

Here,

count

II

likewise

alleges

that:

IEPA

itself

broke

the

law

when

it

determined

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.

Id.

Hamman

incorporates

by

reference

its

motion

to

dismiss

and

supporting

legal

memorandum

from

PCB

08-95,

maintaining

that

the

Board

lacks

jurisdiction

to

reverse

the

Agency’s

technical

findings

as

to

the

appropriate

agronomic

application

of

landscape

waste.

Mot.

at

3.

Similarly,

according

to

Hamman,

the

Board

lacks

jurisdiction:

to

issue

the

finding

requested

in

Count

11:

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

of

the

Act.

Id.

Hamman

concludes

that

because

the

Board

“lacks

jurisdictional

authority

to

enter

such

a

ruling,

Count

II

should

be

stricken

as

frivolous,

or

in

the

alternative,

dismissed.”

Id.

---

8

Count 111—Air

Pollution

Hamman

characterizes

count Ill as claiming

that, “as

a

matter

of

law,”

applying

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

of the

Act.”

Mot. at 3.

Hamman

argues that under

Yorkville’s

interpretation of

the

Act, it is apparent

that “farming

should

be declared

illegal”

because “all fertilizers

cause

a

release

of odor

(and

therefore

‘contaminants’) into the

air”

and accordingly

the use of

any

fertilizer

would

constitute

air pollution in

violation

of the Act. Id., n.2.

Hamman points

out that the Illinois

legislature

not only expressly

authorized

landscape

waste

application

to

farm fields,

but

it

also

enacted “special protections

for

Illinois farms to

guard

against those

who

would file

nuisance suits based

on

the

odors associated with

farming.”

Mot. at 4, citing

740 ILCS

70/1 (2006)

(Farm

Nuisance Suit Act).

According to

Hamman,

Yorkville’s claims

of

unreasonable

interference

with its residents’ use

and enjoyment

of life and

property

bear a

“rather striking resemblance

to a

nuisance action”

and are “nothing

more than

a

nuisance

action draped

in statutory clothing.”

Mot. at 4-5. Hamman

argues that count

III should

be dismissed as

frivolous, maintaining

that

the Board 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.

‘“

Because

Count

III asks

the

Board to find

that the agronomic

application of

landscape

waste

to

farm

fields,

which

is authorized

by 415 ILCS

5/21(q), .is illegal, the

Board lacks

jurisdiction

to

grant

the

relief sought.

Id. at 5.

Hamman

alternatively

asserts

that count III

should

be dismissed because

it fails

to

comply

with the

Board’s

procedural rules,

which require the complaint

to contain

“[tjhe dates,

location,

events,

nature,

extent,

and strength of discharges

or emissions and

consequences

alleged to

constitute

violations

of the Act

and

regulations.”

Mot. at 4, citing 35 Ill.

Adm Code

103.204(c)(2).

According to

Hamman, Yorkville’s

allegations in count

III are

“nothing more

than sweeping

legal

assertions, which

lack the specificity

demanded by the Rule.”

Mot.

at

4.

Count

IV—Water

Pollution

Hamman

asserts

that count IV and count

III

are predicated

on

the same “theory.”

Mot. at

5. In count

IV,

Hamman explains,

Yorkville alleges

that

the agronomic use of

landscape

waste

in

farming

constitutes

water

pollution

because landscape

waste is

a contaminant being

discharged into

groundwater

and therefore, by

applying landscape

waste,

Hamman

is allowing

the

discharge of a

contaminant

into the environment

so as to cause

or

tend

to cause

water

pollution and

so as to

create

a

water pollution

hazard. Jd. at

5-6

Again,

Hamman argues,

count IV should

be stricken

as

frivolous

because

the Board

lacks

jurisdiction

to give

Yorkville what

it

requests:

---

9

a

finding

that

the

agronomic

application

of

landscape

waste,

as

authorized

by

the

Illinois

legislature

at

415

ILCS

S/

2

l(q),

and

as expressly

authorized

by

the

IEPA

with

respect

to

I

lamman

Farms,

is

illegal.

Mot.

at

6.

Further,

as

with

count

lii,

Hamman

maintains

alternatively

that

count

IV

should

be

dismissed

because

it

lacks

the

specificity

required

by

the

Board’s

procedural

rules.

Id.,

citing

35

III.

Adrn.

Code

I

03.204(c)(2).

Relief

Req

nested

Hamman

notes

that

in

each

of

the

four

counts,

Yorkville

requests

“an

award

of

attorney’s

fees

and

costs

of

litigation.”

Mot.

at

1.

Because

the

Board

lacks

statutory

authority

to

award

these

expenses

in

citizen

enforcement

actions,

Hamman

asserts

that

Yorkville’s

requests

should

be

stricken

as

frivolous.

Id.

at 1-2.

Yorkville’s

Response

In

Yorkville’s

response

(Resp.), Yorkville

opposes

Hamman’s

motion

to

strike

or

dismiss

counts

11,

III,

and

IV

but

does

not

specifically

respond

to

Hamman’s

position

that

the

requests

for

attorney

fees

and

costs

are

frivolous.

Count

II—

Landscape

Waste

Violations

Yorkville

first

notes

that

the

Board

is

specifically

granted

the

authority

to

conduct

proceedings

upon

complaints

charging

violations

of

the

Act.

Resp.

at

1-2,

citing

415

ILCS

5/5(d)

(2006).

Hamman,

according

to

Yorkville,

“attempts

to

hide

its

violations

behind

this

pseudo-permit,”

referring

to

the

Agency’s

May

1,2008

determination

allowing

Hamman

to

apply

landscape waste

“at

rates

greater

than

the

agronomic

rate.”

Resp.

at

2.

Yorkville

stresses

that

“the

Act

provides

a

permit is

no

defense to

the

charge

of

a violaf

ion

of

the

Act.”

Id.,

citing

35111.

Adm.

Code 201.121.’

If

a

“full

out”

permit

does

not

protect

against

violations,

the

Agency’s

“mere

grant

of permission”

on

May

1,2008,

does

not

protect

Hamman.

Resp.

at

2.

Yorkville

emphasizes

that

Hamman

cannot

use

the

Agency

determination

to

protect

itself

from

the

alleged

violations,

“regardless

of

whether

the

Agency’s

May

1,2008

decision

was

correct or

not:” Resp.

at

2.

Yorkville

adds

that

while

the

Board

is technically

qualified

to do

so,

the

Board

“likely

does

not

need

to

review

and/or

evaluate

the

Agency’s

decision

to

determine

that

Hamman

violated the

Act

under

Count

11.”

Id.

at

3.

Yorkville

distinguishes

this

enforcement

action,

where

Yorkville

seeks

Board

findings

that

Hamman

has

violated

the

Act,

from

the

appeal

where

Yorkville

seeks

Board

review

of

the

Agency’s

decision granting

Hamman permission

to

apply

landscape

waste

at

a greater

rate.

PCB

08-96 and

PCB 08-95,

Yorkville

concludes,

“are

not

duplicative

because

they

are

not

identical

or

substantially

similar.”

Resp.

at

3-4.

That

provision

reads:

“The

existence

of

a

permit

under

this

Part

shall

not

constitute

a

defense

to a

violation

of

the

Act

or

any

rule

or

regulation

of

this

Chapter,

except

for

construction

or

operation

without

a

permit.”

35

III.

Adm.

Code

201

.121.

---

10

Count 111—Air

Pollution

Yorkville argues that count

Ill is sufficiently

specific

under the

Board’s procedural

rules

because the allegations

“advise [Hamman]

of

the

extent

and nature of

the

alleged

violations to

reasonably

allow preparation

of a defense.” Resp.

at 4, quoting

35111.

Adm.

Code

103.204(c)

(emphasis

added

by Yorkville). According

to Yorkville.

count Ill,

“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.”

Resp. at

4, citing,

e.g.,

Comp. at

¶J4, 12

(described

in Yorkville’s

response as “dates

of

when

Hamman

first

applied

landscape

waste

to its fields and when

complaints

of odor first began”).

Yorkville

further asserts

that

additional information

can

be

obtained through discovery.

Resp.

at 4.

Yorkville maintains

that

Hamman “completely

misses

the

mark”

when

it argues

that

count III is a

“veiled

nuisance complaint

that somehow

is prohibited

by the Illinois

legislature.”

Resp.

at 4. However

similar

the count’s language

may

be to

language

that

would

be used

in a

nuisance

action, the “unreasonable

interference”

language of

count

III comes

directly

from

the

Act

and “designates

the standards

that the Board must

follow

to determine

. .

. whether

Hamman

has committed

air pollution.”

Id. at 5. Yorkville

emphasizes that

the Board

has the authority

to

hear alleged violations

of the Act, and “permits

are

no defense

to

violations.”

Id. at

5.

Yorkville argues that

Hamman also “completely

misrepresents

the

intention

of the

Legislature” because

the

Farm Nuisance

Suit Act eliminated

only nuisance

suits

that arise from

“changed

conditions” in the area

surrounding a farm

and

“specifically

cleared

the

way for

nuisance suits that

arise from

negligent

or improper

operation

of any farm.”

Resp.

at

5, n.1,

citing 740 ILCS

70/3 (2006).

Count IV—Water

Pollution

As with

its response to

the motion

to

strike or dismiss

count III,

Yorkville

maintains

that

count IV “offers such

description that Hamman

is more

than able

to

reasonably

prepare a

defense.”

Resp.

at

6,

citing, e.g.,

Comp. at ¶4,

67 (described

in Yorkville’s

response

as

“dates

of

when Hamman first applied

landscape waste

to its fields and

when

contamination

of

groundwater began”).

Yorkville likewise

adds that

more information

can

be obtained

through

the use

of discovery procedures.

Finally, Yorkville

reiterates

that

the Board

is authorized

to

conduct

enforcement

proceedings; Yorkville

has

charged

Hamman

with

violations

of the Act;

and

neither

a permit nor the Agency’s

May 1, 2008

determination

is a defense

to alleged

violations

of the Act. Resp.

at

6.

---

11

Hamman’s

Reply

Count

II—

Landscape

Waste

Violations

Hamman

insists

that

Yorkville’s

claim

here that

the

Agency’s

May

1,

2008

determination

constitutes

a

violation

of the

Act

is

clearly

identical

to

Yorkville’s

claim

in PCB

08-95

that

the

same

Agency

determination

is

“illegal.”

Reply

at 2.

Further,

according

to

Hamman,

Yorkville

“admits

that

Count il’s

violations

against

Harnrnan

Farms

are

predicated

on a

finding

that

the

Agency’s

May

1,

2008

[determination]

violates

the

law.”

Id.

Hamman

argues

that

“any

violation

in Count

11 relies

on

a

finding

that

the Agency’s

May

1, 2008

decision

was

illegal,”

and

Yorkville

lacks

standing

to

challenge,

and

the Board

lacks

jurisdiction

to

review,

that

decision.

Id.

at 5.

Yorkviile

also

“conveniently

ignores

the fact”

that

Section

21(q)

of the

Act

(415 ILCS

5/21(q)

(2006))

“provides

that

it

is

not ‘a violation

of

the

Act’

for a farm

to apply

landscape

waste

to

its fields

at agronomic

rates.”

Reply

at

2-3. Hamman

maintains

that, “as

a matter

of

law,” the

allegation

that

Hamman

applied

landscape

waste

at the agronomic

rate

determined

by

the

Agency

cannot

state

a

violation

of

the

Act or

the

regulations.

Id.

at

3.

Hamman

counters

Yorkville’s

claims

of open

dumping,

unpermitted

waste

storage

and

disposal,

and

illegal

operation

of an

unpermitted

landscape

waste

compost

facility,

by

asserting

that

Section

21(q)(

2

)

of

the

Act

“provides

that

‘no

permit

shall

be required

for

any

person

applying

landscape

waste

or composted

landscape

waste

at agronornic

rates .

.

.‘

415

ILCS

5121(q)(2).”

Reply

at

3 (emphasis

added

by

Hamman).

Hamman

emphasizes

that

Section

2 1(q)

of

the Act

makes

clear

that

the

“agronomic

rate”

of

application

is

“either

the statutory

default

rate

of

20

tons

per acre

per

year,

or

in

the

alternative,

the rate

which

the

Agency

determines

is

the

appropriate

agronomic

rate

in

light

of a

farm’s

soil

characteristics

or crop

needs.”

Reply

at 4 (emphasis

in

original).

The

Agency

calculated

the

agronomic

rate

for

Hamman

and stated

that

rate in the

May

1, 2008

determination.

Id.

Count

111—Air

Pollution

Hamman

argues

that

Yorkville

“blatantly

misrepresents

the Board’s

pleading

requirements”

under

35

111. Adm.

Code

103.204(c).

Reply

at

5. Yorkville’s

claim

that

additional

information

can

be obtained

through

discovery

“ignores

the

pleading

specificity

required

by

the

Rules.”

Id.

(emphasis

in

original).

According

to

Hamman:

One

cannot

plead

an air

pollution

violation

without

pleading

the

extent

and

strength

of

the

alleged

discharges

or emissions,

as

required

by

the

Rules;

those

Rules

are

not

written

in

the

disjunctive,

and do

not, therefore,

require

either

the

dates,

location,

events,

nature,

extent,

duration,

and strength

of discharges

or

emissions

and consequences

or

allegations

that

allow

preparation

of

a

defense.

Rather,

the

Rule

requires

both.

Moreover,

even

if

both were

not required,

stating

that

over

the

course of

the last

fifteen

(15)

years

some

complaints

were

made

---

12

about

Hamman

Farms,

hardly

provides

sufficient

information

to

allow

preparation

of

a

defense.

Id.

at

6

(emphasis

in

original).

Hamman

concludes

that

count

Ill’s “generic

allegations

fall woefully

short”

of

the

specificity

required

by

the

Board’s

procedural

rules.

Id.

at

8.

In

addition,

Hamrnan

argues

that

ifYorkville’s

air

pollution

claim

is

somehow

adequate,

then

“every homeowner

located

near

a farm

could

bring

a viable

action

for

air

pollution

violations

against

the

nearby

farm(s),

since

all

working

farms

release

odors.”.

Reply

at

6.

Hamman

then

reiterates

its

arguments

based

on

the

Farm

Nuisance

Suit Act,

adding

that

the

General

Assembly

has

clearly

expressed

its

intent

to

protect

Illinois

farms

“from

claims

such

as

those alleged

in

Count

IH,

in

which

Yorkville

alleges

that

residents

near

the

farm

are

perturbed

by

the

odors characteristic

of

farming.”

Id.

at

6-7.

Hamman

asserts that

in

the

Act,

the

legislature

stressed

the

importance

of

“reducing

the

difficulty

of

disposal

of

wastes

and

encouraging

and

effecting

the

recycling

and

reuse

of

waste

materials.”

Reply

at

7,

quoting

415

ILCS

5/20(b)

(2006).

Applying

landscape

waste

to

farm

fields

as

a

soil

conditioner

and fertilizer

under

Section

21(q),

“rather

than

being

dumped

in

landfill

sites,”

furthers

this

legislative

purpose.

2

Reply at

7.

According

to

Hamman,

Yorkville’s

attempted

argument,

that

the

application

of

landscape

waste

to

farm

fields

is “a

per

se

air

pollution

violation

because

it

results in

the

release

of

odors

into

the

atmosphere,

stands

in

direct

contravention

to

the

clearly

stated

will

of

the

General

Assembly.”

Id.

“[I]ronically,”

states

Hamman,

count

III

alleges

“the

very conduct

which

is

expressly

authorized

at

415

ILCS

5/21(q)

actually

constitutes

a violation

of

the

Act.” Id.

Hamman

concludes

that

because

the

Board

“lacks

jurisdiction

to

overrule

the legislature’s

decision

to

allow

farmers

to

use

landscape

waste

as

[a]

soil conditioner

and

fertilizer,”

the

Board

can

neither

“invalidate”

Section

21(q)

nor

“declare

that

the

conduct

which

is

expressly

authorized

by

the

Act

constitutes

a

violation

of

the

Act.” Id.

at

7-8.

Count IV—Water

Pollution

Hamnian

argues that

as

with

count

III,

count

IV

lacks

adequate

detail

and

alleges

violations

“predicated

on

Yorkville’s

theory

than

any

agronomic

use

of

landscape

waste

per

se

violates

the

Act.” Reply

at

8.

Yorkville

argues,

according

to

Hamman,

that

it

is

enough

to

allege

that “Hamman

Farms

has

utilized

landscape

waste

since

1993,

and

.

. .

any

application

of

landscape

waste

to

farm

fields

is

aper

se

water

pollution

violation.”

Id.

Hamman

argues

that

the

Board

“lacks

jurisdiction

to

give

Yorkville

what

it

demands”:

a

finding

that

the

agronomic

use

of

landscape

waste,

which

is

expressly

authorized

by

the

Illinois

legislature

at

415

ILCS

5/21(q),

somehow

constitutes

a

2

Under

the

Act, owners

and

operators

of

sanitary

landfills

are

prohibited

from

accepting

landscape

waste for

final

disposal.

Landscape

waste

separated

from

other

municipal

waste

may

be

accepted

under specified

circumstances,

including

that

the

landfill

composts

all

landscape

waste

and

uses

the compost

as

a

final

vegetative

cover

for

the

landfill,

or

the

landfill

is

permitted

to

use

source

separated

and

processed

landscape

waste

as

an

alternative

daily

cover.

415

ILCS

5/22.2(c)

(2006).

---

13

per

se

violation

of the Act

because

when landscape

waste

is applied

to

fields

it

causes

discharge

of a

contaminant

into

ground

vater.

Id.

at 9.

DISCUSSiON

The

Board

first

provides

the

legal

framework for

today’s

decision.

In

ruling

on

Hamman’s

motion

to strike

or

dismiss

and

deciding

whether

to

accept

Yorkville’s

complaint

for

hearing,

the

Board

discusses

whether

the complaint

is duplicative

or

frivolous.

Lastly,

the

Board

gives

Hamman

60

days to

file an

answer

and directs

the

parties to

hearing.

Le2aI

Framework

Citizen’s

Enforcement

Actions

Under

Section

3 1(c)

of

the Act,

the Attorney

General

and

the

State’s

Attorneys

may

bring

actions

before

the

Board

to

enforce

Illinois’

environmental

requirements

on

behalf

of the

People.

415

ILCS

5/31(c)

(2006);

35 III.

Adm.

Code

103.212(c).

In

addition,

Section

31(d)(l)

of

the Act

provides:

Any person

3

may

file with

the

Board

a

complaint,

meeting

the

requirements

of

subsection

(c)

of

this Section,

against

any

person

allegedly

violating

this Act

or

any

rule or

regulation

thereunder

Unless

the

Board

determines

that

such

complaint

is duplicative

or frivolous,

it

shall

schedule

a hearing

. .

.

. 415

ILCS

5/31(d)(1)

(2006);

see

also

35

Ill.

Adm.

Code 103.212(a).

The

latter

type of

enforcement

action

is referred

to

as a

“citizen’s

enforcement

proceeding,”

which

the Board

defines

as

“an enforcement

action

brought

before

the

Board

pursuant

to

Section

31(d)

of the

Act

by

any person

who

is not

authorized

to

bring

the action

on

behalf

of

the

People

of the

State of

Illinois.”

35111.

Adm.

Code

101.202.

Yorkville’s

complaint

against

Hamman

initiated

a

citizen’s

enforcement

proceeding.

Section

3

1(c),

referred

to

in

the passage

of

Section

31(d)(I)

quoted

above,

states

that

the

complaint

“shall

specify

the provision

of

the

Act

or the

rule

or

regulation

. . .

under

which

such

person

is said

to

be in

violation,

and

a statement

of

the

manner

in,

and the

extent

to which

such

person

is said

to

violate

the

Act or

such

rule

or

regulation

.

. .

.“ 415

ILCS

5/31(c)

(2006).

Even

though

“[c]harges

in

an administrative

proceeding

need

not

be

drawn

with

the

same

refinements

as pleadings

in a

court

of law”

(Lloyd

A.

Fry

Roofing

Co. v.

PCB, 20

III. App.

3d

301,

305,

314

N.E.2d

350,

354 (1st

Dist.

1974)),

the

Act

and the

Board’s

procedural

rules

“provide

for

specificity

in

pleadings”

(Rocke

v.

PCB, 78111.

App.

3d 476,

481,

397

N.E.2d

51,55(1st

Dist.

1979))

and “the

charges

must

be

sufficiently

clear

and

specific

to

allow

preparation

of

a

defense”

(Lloyd

A.

Fry

Roofing,

20111.

App.

3d

at

305,

314

N.E.2d

at 354).

The

Act defines

“person”

as “any

individual,

partnership,

co-partnership,

firm,

company,

limited

liability

company,

corporation,

association,

joint

stock

company,

trust,

estate,

political

subdivision,

state

agency,

or any

other

legal

entity,

or

their

legal

representative,

agent

or

assigns.”

415

ILCS

5/3.3

15 (2006).

---

14

The

Board’s

procedural rules

codify

the

requirements

for

the

contents of

a complaint,

including:

•

1)

A

reference

to

the

provision

of the

Act

and

regulations

that

the

•

respondents

are

alleged

to

be violating;

2)

The

dates,

location,

events,

nature,

extent,

duration,

and

strength

of

discharges

or

emissions

and

consequences

alleged

to

constitute

violations

of

the

Act

and

regulations.

The

complaint

must

advise

respondents

of

the

extent

and

nature

of

the

alleged

violations

to

reasonably

allow

preparation

of a

defense.

3)

A

concise

statement

of the

relief

that

the

complainant

seeks.

35 III.

Adm.

Code

103

.204(c).

Within

30

days

after

being

served

with

a complaint,

a respondent

may

file

a motion

to

strike

or

dismiss

a

complaint, which

may

include

a challenge

that

the

complaint

is

“duplicative”

or”frivolous.”

35111.

Adm.

Code

101

.506,

103.212(b).

A complaint

is’duplicative”

if

it

is

“identical

or

substantially

similar

to

one

brought

before

the

Board

or

another

forum.”

35

III.

Adm.

Code

101.202.

A

complaint

is

“frivolous”

if it

requests

“relief

that

the Board

does

not

have

the

authority

to

grant”

or

“fails

to

state

a èause

of

action

upon

which

the

Board

can

grant

relief.”

Id.

Motions

to

Strike

or

Dismiss

The

Board

has

often

looked

to Illinois

civil

practice

law for

guidance

when

considering

motions

to

strike

or

dismiss

pleadings.

See,

e.g..,

People

v.

The

Highlands,

LLC,

PCB

00-104,

slip

op.

at

4 (Oct.

20, 2005);

Sierra

Club

and

Jim

Bensman

v.

City

of Wood

River

and

Norton

Environmental,

PCB

98-43,

slip

op.

at

2 (Nov.

6, 1997);

Loschen

v.

Grist

Mill

Confections,

Inc.,

PCB

97-174,

slip

op.

at

3-4

(June

5,

1997).

In

ruling

on

a

motion

to strike

or dismiss,

the

Board

takes

all

well-pled

allegations

as

true

and

draws

all reasonable

inferences

from

them

in

favor

of

the

non-movant.

E.g.,

Beers

v. Calhoun,

PCB

04-204,

slip

op.

at 2

(July

22,

2004);

see

also

Inre

Chicago

Flood

Litigation,

176

III.

2d

179,

184,

680N.E.2d

265,

268

(1997);

Board

of

Education

v.

A,

C &

5,

Inc.,

131

III.

2d

428,

438,

546

N.E.2d

580,

584

(1989).

“To

determine

whether

a

cause

of action

has

been

stated,

the

entire

pleading

must

be

considered.”

LaSalle

National

Trust

N.A.

v.

Village

of

Mettawa,

249

Iii.

App.

3d

550,

557,

616

N.E.2d

1297,

1303

(2nd

Dist

1993),

citing

A,

C

& 5,

131111.

2d

at

438

(“the

whole

complaint

must

be

considered,

rather

than

taking

a

myopic

view

of

a disconnected

part[,J”

A.

C &

S

quoting

People

ex

rel.

William

J.

Scott

v.

College

Hills

Corp.,

91111.

2d

138,

145,

435

N.E.2d

463,

466-67

(1982)).

“[ljt

is

well

established

that

a

cause

of

action

should

not

be dismissed

with

prejudice

unless

it

is

clear

that

no set

of

facts

could

be

proved

which

would

entitle

the

plaintiff

to

relief.”

Smith

v.

Central Illinois

Regional

Airport,

207

Ill.

2d 578,

584-85,

802

N.E.2d

250,

254

(2003);

see

also

Village

of

Mettawa,

249

III.

App.

3d

at 557,

616

N.E.2d

at 1303;

Chicago

Flood,

176

Ill.

2d

at

189,

680

N.E.2d

at 270

(“[T}he

trial

court

must

interpret

all

pleadings

and

supporting

documents

in the

light

most

favorable

to the

nonmoving

party.”);

People

v.

Peabody

Coal

Co.,

---

15

PCB

99-134,

slip.

op.

at

1-2

(June

20, 2002);

People

v.

Stein

Steel

Mills

Services,

Inc.,

PCB

02-

1,

slip

op.

at

1

(Nov.

1

5,

2001).

The

appellate

court

explained:

It

is

impossible

to

formulate

a

simple

methodology

to

make

this

determination,

and therefore

a

flexible

standard

must

be

applied

to

the

language

of

the

pleadings

with

the

aim

of

facilitating

substantial

justice

between

the

parties.

[Village

of

Mettawa,

249

Ill.

App.

3d

at

557,

616

N.E.2d

at

1303,

citing

Gonzalez

v.

Thorek

Hospital

& Medical

Center.

143

III.

2d

28,

34,

570

N.E.2d

309

(1991)]

The

disposition

of

a

motion

to strike

and

dismiss

for

insufficiency

of

the

pleadings

is

largely

within

the

sound

discretion

of

the

court.

[Village

of

Mettawa,

249

Ill.

App.

3d

at

557,

616

N.E.2d

at

1303,

citing

Groenings

v.

City

of

St.

Charles,

215

Ill.

App.

3d

295,

299,

574

N.E.2d

1316

(2nd

Dist.

1991)]

Illinois

requires

fact-pleading,

not

the

mere

notice-pleading

of

federal

practice.

Adkins

v.

Sarah

Bush

Licoln

health

Center,

129

Ill.

2d

497,

518,

544

N.E.2d

733,

743

(1989);

College

Hills

Corp.,

91111.

2d

at

145,

435

N.E.2d

at

466-67.

In

assessing

the

adequacy

of

pleadings

in

a

complaint,

the

Board

has

accordingly

stated

that

“Illinois

is

a

fact-pleading

state

which

requires

the

pleader

to

set

out the

ultimate

facts

which

support

his

cause

of

action.”

Grist

Mill

Confections,

PCI3

97-174,

slip

op.

at

4,

citing

Village

of

Mettawa,

249

Ill.

App.

3d

at

557,

616

N.E.2d

at

1303;

see also

College

Hills,

91111.

2d

at

145,

435

N.E.2d

at

466-67;

City

of

Wood

River,

PCB

98-43,

slip

op.

at

2

(petitioner

is

not

required

“to

plead

all

facts

specifically

in

the

petition,

but

to

set

out

ultimate

facts

which

support

his cause

of

action”).

“[Ljegal

conclusions

unsupported

by

allegations

of specific

facts

are

insufficient.”

Village

of

Mettawa,

249

Ill.

App.

3d

at

557,

616

N.E.2dat

1303,

citing

Estate

of

Johnson

v.

Condell

Memorial

Hospital,

119

Ill.

2d

496,

509-10,

520

N.E.2d

37

(1988).

A

complaint’s

failure

to

allege

facts

necessary

to

recover

“may

not

be cured

by

liberal

construction

or

argument.”

Condell

Memorial

Hospital,

119

Ill.

2d

at

510,

520

N.E.2d

at

43, quoting

People

ex

rel.

Kucharski

v.

Loop

Mortgage

Co.,

43111.

2d

150,

152

(1969).

A complaint’s

allegations

are

“sufficiently

specific

if

they

reasonably

inform

the

defendants

by factually

setting

forth

the

elements

necessary

to

state

a

cause

of

action.”

Collegç

Hills,

91111.

2d

at

145,

435

N.E.2d

at

467.

“Despite

the

requirement

of

fact

pleading,

courts

are

to

construe

pleadings

liberally

to

do

substantial

justice

between

the

parties.”

Grist

Mill

Confections,

PCB

97-174,

slip

op.

at

4,

citing

Classic

Hotels,

Ltd.

v.

Lewis,

259

Ill.

App.

3d

55,

60,

630 N.E.

2d

1167

(1St

Dist.

1994);

see

also

College

Hills,

91111.

2d

at

145,

435

N.E.2d

at

466

(“In

determining

whether

the

complaint

is

adequate,

pleadings

are

liberally

construed.

The

aim

is

to

see

substantial

justice

done

between

the parties.”).

Fact-pleading

does

not

require

a

complainant

to

set

out its

evidence:

“To

the

contrary,

only

the ultimate

facts

to

be

proved

should

be

alleged

and not

the

evidentiary

facts

tending

to

prove

such

ultimate

facts.”

People

ex

rel.

Fahner

v.

Carriage

Way

West,

Inc.,

88

Ill.

2d

300,

308,

430N.E.2d

1005,

1008-09

(1981),

quoting

Board

of

Education

v.

Kankakee

Federation

of

Teachers

Local

No.

886,

46

III.

2d

439,

44647

(1970);

City

of

Wood

River,

PCB

9

8-43,

slip

op.

at

2.

Moreover,

“pleadings

are

not

intended

to

create

technical

obstacles

to

reaching

the merits

of

a

case

at

trial; rather,

their

purpose

is

to

facilitate

the

resolution

of

real

and

substantial

controversies.”

Village

of

Mettawa,

249

Ill.

App.

3d

at

557,

616

N.E.2d

at

1303,

citing

College

Hills,

91111

2d

at

145.

Hamman’s

Motion

to

Strike

or

Dismiss

---

16

count

ii—

Landscape Waste

Violations

For

the

reasons

given

below,

the Board

grants

in

part and

denies

in

part

Hamman’s

motion

to

strike

or

dismiss

count

11.

In

paragraph

49 of

count

11,

Yorkville

alleges

as follows:

HAMMAN

failed

to

establish

that

HAMMAN’s

soil

characteristics

or crop

needs

require

a

higher

rate

of landscape waste

application

in

its request

to the

Agency.

As a

result,

the

Agency’s

grant

of

permission

allowing

HAMMAN

to

apply

landscape

waste

at

rates

up

to

eighty

(80)

tons

per

acre

per

[]

year

violates

the

Act

and

regulations.

Comp.

at

¶49.

On

the

same

date

that

it filed

this

citizen’s

enforcement

complaint,

Yorkville

also

filed

a

third-party appeal

of

the Section

21(q)

determination

issued

by the

Agency

on

May

1,2008,

to

Hamman.

The

May

1

determination

is the

“Agency’s

grant

of

permission”

to

which

Yorkville

refers

in paragraph

49

of

the

complaint.

4

On August

7, 2008,

the

Board

granted

the

Agency’s

and

Hamman’s

motions

to

dismiss

Yorkville’s

third-party

appeal.

The

Board

determined

that

it

lacked

jurisdiction

to hear

Yorkville’s

petition

for

review

of the

Section

21(q)

determination.

United

City

of

Yorkville

v.

IEPA

and Hamman

Farms,

PCB

08-95,

slip

op

at

8

(Aug.

7,

2008).

The

Board

also

stated

that

it “cannot

hear Yorkville’s petition

as

a complaint

charging

the

Agency

with

violating

the