i
CLERK’S
OFFICE
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
IJL:C U
I
MUNICIPAL
UNITED
CITYCORPORATION,
OF
YORKVILLE,
A
)
)
Pollution
STATE
OF
Control
ILLINOIS
Board
Petitioner,
)
)
PCB
No.
08-96
v.
)
Enforcement-Land,
Air,
Water
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
and
)
HAMMAN
FARMS,
)
Respondents.
)
NOTICE
01?
FILING
TO:
SEE
PERSONS
ON
ATTACHED
SERVICE
LIST
PLEASE
TAKE
NOTICE
that
I
have
today
filed
with
the
Office
of
Clerk
of
the
Illinois
Pollution
Control
Board,
an
original
and
nine
copies
each
of PETITIONER’S
MOTION
FOR
LEAVE
TO
FILE
AMENDED
COMPLAINT,
copies
of
which
are
herewith
served
upon
you.
Respectfully
submitted,
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
THIS
FILING
IS
SUBMITTED
ON
RECYCLED
PAPER
CERTIFICATE
OF
SERVICE
1,
Michelle
M. LaGrotta,
the
undersigned
certify
that
on
December
1,
2008,
I
have
served
the
attached
PETITIONER’S MOTION
FOR
LEAVE
TO
FILE
AMENDED
COMPLAINT,
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.
Box 1389
Rockford,
IL
61105-1389
(via
email
to:
NNelson@hinshawlaw.com
and
CHelsten@hinshiiwIaw.com,
and U.S.
Mail)
//
Michelle
M.
LaGrotta
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
DEC
012008
STATE
OF
QL
UNITED
CITY
OF
YORKVILLE,
)
POUutjorI
Control
A
Board
municipal
corporation,
)
)
Petitioner,
)
PCB
NO.
08-96
)
v.
)
Permit
Appeal
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY
and
)
HAMMAN
FARMS,
)
)
Respondents.
)
PETITIONER’S
MOTION
FOR
LEAVE
TO
FILE
AMENDED
COMPLAINT
NOW
COMES,
Petitioner,
United
City
of
Yorkville,
by
and
through
its
attorneys,
Gardiner
Koch
Weisberg
&
Wrona,
hereby
moves
the
Illinois
Pollution
Control
Board
for
leave
to
file
the
Amended
Complaint,
attached
hereto,
and
in
support
of
its
motion,
Yorkville
states
as
follows:
1.
On
July
7,
2008,
Respondent
Hamman
Farms
filed
a
Motion
to
Strike
and/or
Dismiss
portions
of
Petitioner’s
Formal
Complaint,
which
was
filed
on
June
14,
2008.
2.
On
October
16,
2008,
the
Illinois
Pollution
Control
Board
issued
an
Order
and
Opinion,
granting
Respondent’s
Motion
to
Dismiss
in
part
and
denying
in
part.
Specifically,
the
Board
granted
Hamman
Farms’
motion
by
striking
paragraph
49
of
Count
II
of
Petitioner’s
Complaint
with
prejudice
and
Petitioner’s
request
for
attorney’s
fees
and
costs
with
prejudice,
and
dismissing
Count
III
of
Petitioner’s
Complaint
without
prejudice.
3.
The
Board
dismissed
Petitioner’s
Count
III
as
insufficiently
pled
to
satisfy
415
ILCS
5/31(c),(d)(l)
(2006)
and
35
111.
Adm.
Code
103.204(c)(2).
4.
Petitioner
United City
of
Yorkville
accordingly
requests
permission
to
file
its
Amended
Complaint with
the Board,
a copy
of which is
attached hereto,
to
sufficiently
plead its
position on Count III
of the Original
Complaint
and
to satisfy
415 ILCS 5/31(c)
and (d)(2)
and 35111. Adm.
Code 103.204(c)(2).
WHEREFORE, for all the
above-mentioned
reasons, the
United City
of Yorkville
respectfully requests
leave
to file the attached
Amended
Complaint,
and for such other
and
further relief as the Board deems appropriate and
just.
Dated:
December 1, 2008
Thomas
G.
Gardiner
Michelle
M. LaGrotta
Nate
Lusignan
Gardiner
Koch &
Weisberg
53 W Jackson Blvd., Ste. 950
Chicago,
IL
606104
(312) 362-0000
Law
Firm ID: 29637
Respectfully
submitted,
BEFORE
THE
ILLINOiS
POLLUTION
CONTROL
BOARD
UNITED
CITY OF
YORKVILLE,
A
)
MUNICIPAL
CORPORATION,
)
Complainant,
)
)
PCB No. 08-96
v.
)
)
(Enforcement-Land,
Air,
Water)
HAMMAN FARMS,
)
Respondents.
)
AMENDED
COMPLAINT
NOW
COMES the
Complainant, UNITED
CITY OF YORKVILLE,
by its attorneys,
GARD1NER
KOCH
&
WEISBERG,
pursuant to Section
31(d) of the Illinois
Environmental
Protection
Act (415 ILCS
5/31(d)),
and 35
Iii. Admin. Code
§
103.200, and for its Amended
Complaint
against HAMMAN
FARMS,
states as follows:
GENERAL
ALLEGATIONS
1.
Complainant, UNITED
CITY OF YORKVILLE,
(hereinafter referred
to
as
“Yorkville”)
is an
Illinois
municipal
corporation
in
Kendall
County,
Illinois.
2.
At
all times
relevant, HAMMAN
FARMS (hereinafter
referred
to
as
“HAMMAN”)
is a
farm, located on
approximately twenty-two
hundred acres
ofland
in
Kendall
County.
3.
On this
land, HAMMAN
grows
crops
of
soybeans, wheat
and corn.
4.
Starting
in or
around
1993,
HAMMAN registered
with
the Illinois
Environmental
Protection
Agency
(“Agency”)
as an
On-Site Compost Landscape
Waste Compost Facility
(hereinafter
referred to as
“Compost Facility”)
pursuant
to section
21 (q)(3) of the Illinois
Environmental
Protection
Act
(hereinafter
referred to as “Act”).
I
5.
As
part
of HAMMAN’
S farming
operations,
HAMMAN
receives
landscape
waste
from
offsite.
T-TAMMAN
grinds
the
landscape
waste
in
a
tub
grinder.
HAMMAN
thçn
applies
the
landscape
waste
to
farm
fields.
6.
Sometime
in
or
around
1992
to
1993,
HAMMAN
applied
to
the Agency
for
permission
to apply
landscape waste
at
rates
greater
than
the
agronomic
rate
of twenty
(20)
tons
per
acre
per
year.
The
Agency
denied
Hamman’s
request.
7.
Since
registering
with
the
Agency
as
a Compost
Facility,
HAMMAN
has
completed
and filed
annual
reports
as
required
under
35
Illinois
Administrative
Code
§830.1
06(b)(2).
8.
HAMMAN
certified
that
it
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
for
the
years
2002,
2003,
2004,
2005,
and
2006,
respectively.
9.
Application
of
landscape
waste
at agronomic
rates
results
in
application
measurements
of
three
quarter
of an
inch.
Application
measurements
of
greater
than
three
quarters
of
an
inch signify
that
landscape
waste
is being
applied
at rates
greater
than
the
agronomic
rate.
10.
Since
registering
as a
Compost
Facility,
HAMMAN
has
applied
landscape
waste
at
rates
resulting
in application
measurements
greater
than
three
quarters
of one
inch.
11.
On
several
occasions
since
registering
as
a Compost
Facility,
Agency
inspectors
have
found
litter
mixed
with
the
landscape
waste
in
HAMMAN’s fields.
12.
Since
HAMMAN
began
the
application
of
landscape
waste
to its
fields,
the
Agency
has
received
complaints
of strong
and
offensive
odors
around
HAMMAN.
2
13.
On
October
17,
2007,
Agency inspectors,
Gino
Bruni
and
Mark
Retzlaff,
conducted
an
inspection
of
HAMMAN.
During
the inspection,
the
inspectors
observed
the
following:
a.
The
application
rate
was two
and one
half
inches
to three
inches
thick
using
a
ruler;
b. Numerous flies
were
at
the
field
where
landscape
waste
had
been
applied;
and
c.
General
refuse
was
in
the landscape
waste.
14.
On
November
15,
2007,
the
Agency
issued
HAMMAN
a violation
notice.
The
notice
cited
the
following
violations:
a.
Section
21(a)
of the
Act:
HAMMAN
openly
dumped
landscape
waste
and
general
refuse.
HAMMAN
did
not
apply
landscape
waste
at
agronomic
rates.
b.
Section
21(d)
of
the
Act:
HAMMAN
openly
dumped
landscape
waste
and
general
refuse.
HAMMAN
did
not
apply
landscape
waste
at agronomic
rates.
HAMMAN
conducted
the
aforementioned
activities
without
a
permit
issued
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.
35 Ill.
Admin.
Code
§807.202:
HAMMAN
openly
dumped
landscape
waste
and
general
refuse.
HAMMAN
did
not
apply
landscape
waste
at agronomic
3
rates.
HAMMAN
conducted
the
aforementioned
activities
without
a
developmental
permit
granted
by
the
Agency.
15.
The
violation
notice
specified
“suggested
resolutions.”
These
included
the
following:
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.
16.
Following
the
violation
notice,
a
violation
notice
meeting
was
held
at
the
Agency’s
Des
Plaines
office.
At
the
meeting,
DONALD
J.
HAMMAN
admitted
that
HAMMAN
was
applying
landscape
waste
at
a
rate
greater
than
twenty
(20) tons
per
acre
per
year.
17.
On
March
5,
2008,
the
Agency
rejected
HAMMAN’s
Compliance
Commitment
Agreement
on
the
following
bases:
a. HAMMAN
failed
to
agree
to
apply
landscape
waste
at
agronomic
rates
(twenty
(20)
tons per
acre per
year);
and
4
b.
HAMMAN
failed
to
calculate
on
a
daily
basis
the percentage of non-
landscape waste.
18.
On April 10, 2008,
HAMMAN
filed a
request
for permission
to
apply landscape
waste at rates greater than the
agronomic rate
of
twenty (20)
tons per
acre
per year. HAMMAN
included with its application
the following documents:
(1) Land
Application
Plan; (2) USDA
Soil Conservation Service
Soil Survey;
(3)
Chemical Analysis
of Soil/Compost; (4) Calculations
regarding
Nitrogen
Demand
and Expected Nitrogen and Potassium Loading;
and
(5) Opinion of
Dr. Razvi.
V
19.
The Chemical
Analysis of Soil/Compost included
four
(4)
soil samples and one
(1) sample of
leaves with mixed forage. Midwest Laboratories, who performed
the tests,
V
received the four soil
samples conducted the analyses on December
7, 2007. Midwest
Laboratories’ report did not identify the location from where the samples were
taken. Midwest
Laboratories, Inc. received the sample of
leaves with
mixed forage on December
5, 2007.
20.
The Illinois
Agronomy
Handbook
recommends using a sampling of one
composite from
each
two and one half (2
1/2)
acre areas when conducting soil
test analysis. Mr.
Gary Cima,
an expert
in landscape waste application and former Agency investigator,
recommends
using a sampling of two tests from
each
one acre
area.
21.
On
April
16, 2008,
HAMMAN filed
a
supplemental application.
V
22.
On May 1, 2008, the Agency
approved
HAMMAN’s
request to raise the
agronomic rate.
COUNT I
OPEN DUMPING VIOLATIONS
23.
Section 21 of
the Act, 415 ILCS 5/21(2008), provides in pertinent
part as
follows:
“No person shall:
5
(a) Cause
or allow
the
open
dumping
of
any waste.
(d)
Conduct
any
waste-storage,
waste
treatment,
or waste-
disposal
operation:
(1)
without
a permit
granted
by
the
Agency
or
in
violation
of
any
conditions
imposed
by
such
permit...
(2)
in
violation
of
any
regulations
or
standards
adopted
by
the
Board
under
this
Act;....
(e)
Dispose,
treat,
store,
or abandon
any
waste,
or transport
any
waste
to
this
State
for
disposal,
treatment
storage
or
abandonment,
except
at
a site
or facility
which
meets
the
requirements
of this
Act
and
of regulations
and
standards
thereunder....
(p)
In violation
of
subdivision
(a) of
this
Section,
cause
or
allow
the open
dumping
of
any
waste
in a
manner
which
results
in any
of
the following
occurrences
at
the
dump
site:
(1) litter;...”
24.
Section
3.185
of
the
Act, 415
ILCS
5/3.185
(2008),
provides:
“‘Disposal’
means
the
discharge,
deposit,
injection,
dumping,
spilling,
leaking
or
placing
of
any
waste
or
hazardous
waste
into
or
on any
land
or water
or
into
any
well
so
that
such
waste
or
hazardous
waste
or
any
constituent
thereof
may
enter
the
environment
or be
emitted
into
the
air
or
discharged
into
any
waters,
including
ground
waters.”
25.
Section
3.230
of the
Act,
415
ILCS
5/3.230
(2008),
provides
in pertinent
part:
“Household
waste’
means
any
solid
waste
(including
garbage,
trash,
and
sanitary
waste
in
septic
tanks)
derived
from
households...”
26.
Section
3.270
of
the Act,
415
JLCS
5/3.270
(2008),
provides:
“Landscape wast&’
means
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.”
6
27.
Section
3.305
of the
Act,
415
ILCS
5/3.305
(2008),
provides:
“Open
dumping’
means
the consolidation
of refuse
from
one
or
more
sources
at
a
disposal
site
that
does not
fulfill
the
requirements
of
a
sanitary
landfill.”
28.
Section
3.385
of the
Act,
415 ILCS
5/3.385
(2008),
provides:
“Refuse’
means
waste.”
29.
Section
3.445
of the Act,
415
ILCS
5/3.445
(2008),
provides:
“Sanitary
landfill’
means
a facility
permitted
by the
Agency
for
the
disposal
of
waste
on
land
meeting
the
requirements
of the
Resource
Conservation
and Recovery
Act,
P.L.
94-580,
and
regulations
thereunder,
and
without
creating
nuisances
or
hazards
to public
health
or
safety,
by confining
the
refuse
to
the
smallest
practical
volume
and
covering
it with
a layer
of earth
at the
conclusion
of each
day’s
operation,
or
by such
other
methods
and
intervals
as
the
Board
may
provide
by
regulation.”
30.
Section
3.470
of the
Act,
415 ILCS
5/3.470
(2008),
provides:
“Solid
waste’
means
waste.”
31.
Section
3.480
of
the Act,
415
ILCS 5/3.480
(2008),
provides:
“Storage’
means
the
containment
of
waste,
either
on a temporary
basis
or for
a period
of years,
in such
a
manner
as
not to
constitute
disposal.”
32.
Section
3.535
of
the
Act,
415 ILCS
5/3.535
(2008),
provides
in
pertinent
part:
“Waste’
means
any
garbage..
.or
other
discarded
material,
including
solid,
liquid,
semi-solid
or contained
gaseous
material
resulting
from
industrial,
commercial,
mining
and
agricultural
operations,
and
from
community
activities..
33.
Section
3.540
of the Act,
415
ILCS
5/3.540
(2008),
provides:
“Waste
disposal
site’
is a site
on
which
solid
waste
is
disposed.”
34.
On
October
23,
2007
the
Agency
inspected
HAMMAN
and
found
refuse
mixed
in
with
the
landscape
waste.
7
35.
Garbage
and
refuse
mixed
with
the
landscape
waste
constitutes
waste
under
section
3.535 of
the
Act. 415 ILCS
5/535.
36.
On
several
occasions
since HAMMAN
began applying
landscape
waste,
garbage
has
been
mixed with
the
landscape
waste
on HAMMAN
fields.
37.
In allowing
the garbage
to
be disposed
of and
remain on
H.AMMAN
fields,
HAMMAN
allowed
“open
dumping”
for purposes
of 415
ILCS 5/21(a).
38.
In allowing
the
garbage
to
be
disposed
of and
remain
on
HAMMAN
fields,
HAMMAN
conducted
waste-storage
and
waste-disposal
operations,
for purposes
of
415 ILCS
5/21(d)(1)
and
(2),without
a
permit
and in violation
of the
Act and
regulations.
39.
In
allowing
the
garbage to
be disposed
of and
remain
on
HAMMAN
fields,
HAMMAN
became
a
waste disposal
site for purposes
of 415
ILCS
5/21(e).
At the
time
that
HAMMAN
allowed
garbage
to remain
on HAMMAN
fields,
HAMMAN
was
not
permitted
for
the disposal
of
waste, and
thus
does
not meet
the requirements
of the
Act
or
the regulations
for
purposes
of415 ILCS
5/21(e).
40.
In
allowing
the garbage
to
be
disposed
of and
remain
on HAMMAN
fields,
HAMMAN
allowed
“open
dumping”
of
litter
for
purposes
of 415
ILCS
S/21(p)(l).
41.
HAMMAN’s
failure
to remove
the waste
is
harmful
to
the
environment
and
to
the
health
and welfare
of
the people
living
and
working
near
HAMMAN.
42.
Because
of the aforementioned
reasons,
HAMMAN
has
violated
sections
21(a),
21(d)(1)
and (2),
21(e),
and 21(p)(l)
of the Act.
PRAYER
FOR
RELIEF
WHEREFORE, Complainant,
UNITED
CITY
OF
YORKVILLE,
respectfully
requests
that
the Board
enter an
order
against
the Respondent:
8
A.
Authorizing
a
hearing
in this
matter
at which
time
the
Respondent
will
be
required
to
answer
the
allegations
herein;
B.
Finding
that
the
Respondent
has
violated
the
Act
and
regulations
as
alleged
herein;
C.
Ordering
the
Respondent
to cease
and
desist
from
any
further
violations
of
the
Act
and
associated
regulations;
D.
Ordering
the
Respondent
to
pay
a
civil
penalty
of
$50,000 for
each
such
violation,
pursuant
to
Section
42(a)
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
E.
Ordering
the
Respondent
to
pay
an
additional
civil
penalty
of
$10,000 for
each
day
during
which
each
such
violation
continued,
pursuant
to
Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
and
F.
Granting
such
other
relief
as
the
Board
may
deem
appropriate.
COUNT
II
LANDSCAPE
WASTE
VIOLATIONS
43.
Section
21
of
the
Act,
415
ILCS
5/21(2008),
provides
in pertinent
part
as follows:
“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:...
(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
9
composting
material
is
utilized,
and
the
composting
facility
constitutes
no
more
than
2%
of
the
property’s
total
acreage...
(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...
(D)
the
owner
or
operator,
by.
. .
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),
‘agronomic
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.”
44.
Section 3.270
of
the
Act,
415
ILCS
5/3.270
(2008),
provides:
“‘Landscape
waste’
means
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.”
10
45.
Section
830.102
of
the Illinois
Administrative
Code
Title
35,
ILL.
ADMIN.
CODE
TIT.
35, §830.102,
provides
in
pertinent
part:
“Except
as
stated
in
this
Section,
the
definition
of
each
word
or
term
used
in
this
Part,
35
Ill.
Adm.
Code
831
and
35
111.
Adrn.
Code
832
shall
be
the same
as
that
applied
to
the
same
word
or
term
in the
Environmental
Protection
Act...
‘Agronomic
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
sites
soil
characteristics
or
crop
needs
require
a
higher
rate.
(Section
2
1(q)
of
the
Act.)...
‘Compost’
means
the
humus-like
product
of
the
process
of
composting
waste,
which
may
be
used
as
a
soil
conditioner.
(Section
3.70
of
the
Act.)
‘Composting’
means
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....
‘Land
application’
means
the
spreading
of
waste,
at
an
agronomic
rate,
as
a
soil
amendment
to improve
soil
structure
and
crop
productivity....
‘Landscape
waste
compost
facility’
means
an
entire
landscape
waste
composting
operation,
with
the’
exception
of
a
garden
compost
operation....
‘On-farm
landscape
waste
compost
facility’
means
a
landscape
compost
facility
which
satisfies
all
of
the
criteria
set
forth
in
Section
830.106.”
46.
Section
832.109
of
the
Illinois
Administrative
Code
Title
35,
ILL.
ADMI’N.
CODE
TIT.
35,
§832.109,
provides:
“The
issuance
and
possession
of
a
permit
shall
not
constitute
a
defense
to
a
violation
of
the
Act
or
any
Board
regulations,
except
for
the
development
and
operation
of
a
facility
without
a
permit.”
11
47.
Landscape
waste
constitutes
waste
under
section
3.53
5 of
the
Act.
415
ILCS
5/535.
48.
Since
HAMMAN
began
applying
landscape
waste,
HAMMAN
has
applied
landscape
waste
at rates
greater
than
the agronomic
rate
of
twenty
(20)
tons
per
acre
per
year.
49.
In
applying
landscape
waste
at
rates
greater
than the
agronomic
rate
of
twenty
(20)
tons
per acre
per
year,
HAMMAN
allowed
“open
dumping”
for
purposes
of
415
ILCS
5/21(a).
50.
In
applying
landscape
waste
at rates
greater
than
the
agronomic
rate
of
twenty
(20)
tons
per
acre
per year,
HAMMAN
conducted
waste-storage
and waste-disposal
operations,
for
purposes
of
415
ILCS
5/21(d)(1)
and
(2),without
a
permit
and
in violation
of the
Act
and
regulations.
51.
In
applying
landscape
waste
at rates
greater
than
the agronomic
rate
of twenty
(20)
tons
per
acre
per
year,
HAMMAN
became
a waste
disposal
site
for
purposes
of 415
ILCS
5/21(e).
HAMMAN
was
not
permitted
for the
disposal
of
waste,
and
thus
does
not
meet
the
requirements
of
the Act
or
the regulations
for purposes
of 415
ILCS
5/21(e).
52.
In
applying
landscape
waste
at rates
greater
than
the agronomic
rate
of twenty
(20)
tons per
acre
per year,
HAMMAN
does
not meet
the
permit
exemptions
found
in
sections
21
(q)(2)
and
(3)
of the
Act.
In
applying
landscape
waste
at
rates
greater
than
the
agronornic
rate
of
twenty
(20)
tons
per
acre
per
year,
without
a
permit,
HAMMAN
violated
section
21(q)
of the
act.
53.
Because
of
the aforementioned
reasons,
HAMMAN
has violated
sections
2
1(a),
21(d)(1)
and
(2),
21(e),
and
21(q).
PRAYER
FOR
RELIEF
12
WHEREFORE,
Complainant,
UNITED
CITY
OF
YORKVILLE,
respectfully
requests
that
the
Board
enter
an
order
against
the
Respondent,
A.
Authorizing
a
hearing
in
this
matter
at
which
time
the
Respondent
will
be
required
to
answer
the
allegations
herein;
B.
Finding
that
the
Respondent
has
violated
the
Act
and
regulations
as
alleged
herein;
C.
Ordering
the
Respondent
to ccasc
and
desist
from
any
further
violations
of
the
Act
and
associated
regulations;
D.
Ordering
the
Respondent
to
pay
a
civil
penalty
of
$50,000 for
each
such
violation,
pursuant
to
Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
E.
Ordering
the
Respondent
to
pay
an
additional
civil
penalty
of
$10,000
for
each
day
during
which
each
such
violation
continued,
pursuant
to
Section
42(a)
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
and
F.
Granting
such
other
relief
as
the
Board
may
deem
appropriate.
COUNT
III
AIR POLLUTION
VIOLATIONS
54.
Section
9
of the
Act,
415
ILCS
5/9
(2008)
provides
in
pertinent
part:
“No
person
shall:
(a)
Cause
or
threaten
or
allow
the
discharge
or emission
of
any
contaminant
into
the
environment
in
any
State
so
as
to
cause
or
tend
to
cause
air
pollution
in
Illinois,
either
alone
or
in
combination
with
contaminants
from
other
sources,
or
so
as
to
violate
regulations
or
standards
adopted
by
the
Board
under
this
Act...”
55.
Section 3.115
of the
Act,
415
ILCS
5/3.115
(2008),
provides
13
“‘Air
pollution’
is
the
presence
in
the
atmosphere
of
one
or
more
contaminants
in
sufficient
quantities
and
of
such
characteristics
and
duration
as
to
he
injurious
to
human,
plant,
or
animal
life,
to
health,
or
to
property, or
to
unreasonably
interfere
with
the
enjoyment
of
life
or
property.”
56.
Section
3.165
of
the
Act,
415
ILCS
5/3.165
(2008),
provides:
“Contaminant’
is
any
solid,
liquid,
or
gaseous
matter,
any
odor,
or
any
form
of
energy,
from
whatever
source.”
57.
Under Section
3.165
of
the
Act,
the
odor
that
is
emitted
from
HAMMAN’s
application
of
landscape
waste
is a
contaminant.
58.
Under Section
3.115
of
the
Act,
the
release
of
the
odor,
a
contaminant,
is
air
pollution
that
unreasonably
interferes
with
the
enjoyment
of
life
or
property.
This
odor
unreasonably
interferes
with
Yorkville’s
residents’
use
and
enjoyment
of life
and
property.
59.
Specifically,
the
odor
caused
by
Hamman
Farms
has
substantially
interfered
with
the
Yorkville
residents’
rights
to
public
health
and
comfort
and
to
the
quiet
use
and
enjoyment
of
their
land,
in
some
of
the
following
ways:
a.
It
forces
Yorkville
residents
to
remain
indoors;
b.
It prevents
Yorkville
residents
from
opening
windows
to
cool
their
homes
and
causes
them
to
use
air
conditioning
instead;
c.
It
precludes
Yorkville
residents
from
entertaining
guests
outdoors;
d.
It
precludes
Yorkville
residents
from
using
the
outdoor
portions
of
their
property,
including
decks
attached
to their
homes;
e.
It
prevents
Yorkville
children
from
playing
outdoors;
and
f.
It
occasionally
causes
nausea
in
the
people
who
smell
the
odor.
60.
In
applying
the
landscape
waste,
HAMMAN
is
allowing
the
discharge
of
contaminant
into
the
environment
so
as
to
cause
air
pollution
under
section
9(a)
of
the
Act.
14
61.
Because
of
the
aforementioned
reasons,
1-JAMMAN
has
violated
section
9(a)
of
the
Act.
PRAYER
FOR
RELIEF
WHEREFORE,
Complainant,
UNITED
CITY
OF
YORKVILLE,
respectfully
requests
that
the
Board
enter
an order
against
the
Respondent,
A.
Authorizing
a hearing
in this
matter
at
which
time
the
Respondent
will
be
required
to
answer
the
allegations
herein;
B.
Finding
that the
Respondent
has
violated
the
Act
and regulations
as
alleged
herein;
C.
Ordering
the Respondent
to
cease
and desist
from
any further
violations
of•
the
Act
and
associated
regulations;
D.
Ordering
the
Respondent
to
pay
a civil
penalty
of
$50,000
for
each such
violation,
pursuant
to
Section
42(a)
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
E.
Ordering
the
Respondent
to pay
an
additional
civil
penalty
of
$10,000 for
each
day
during
which
each
such
violation
continued,
pursuant
to Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
and
F.
Granting
such
other
relief
as
the
Board
may
deem
appropriate.
COUNT
IV
WATER
POLLUTION
VIOLATIONS
62.
Section
12
of
the
Act,
415
ILCS
5/12
(2008),
provides
in
pertinent
part:
“No
person
shall:
(a)
Cause
or
threaten
or
allow
the
discharge
of any
contaminants
into
the
environment
in
any
State
so
as
to
15
cause
or
tend
to
cause
water
pollution
in Illinois,
either
alone
or
in
combination
with
matter
from
other
sources,
or
so
as
to
violate
regulations
or
standards
adopted
by the
Pollution
Control
Board
under
this
Act...
(d) Deposit
any
contaminants
upon
the
land
in
such
place
and
manner
so
as
to
create
a
water
pollution
hazard.”
63.
Section
3.165
of
the
Act,
415
ILCS
5/3.165
(2008),
provides:
“Contaminant’
is
any
solid, liquid,
or
gaseous
matter,
any
odor,
or
any
form of
energy,
from
whatever
source.”
64.
Section
3.545 of
the
Act,
415
ILCS
5/3.545
(2008),
provides:
“Water
pollution’
is
such
alteration
of
the
physical,
thermal,
chemical,
biological
or
radioactive
properties
of
any
waters
of
the
State,
or
such
discharge
of
any
contaminant
into
any
waters
of
the
State,
as
will
or
is
likely
to
create
a
nuisance
or
render
such
waters
harmful
or
detrimental
or
injurious
to
public
health,
safety
or
welfare,
or
to
domestic,
commercial,
industrial,
agricultural,
recreational,
or
other
legitimate
uses,
or
to
livestock,
wild
animals,
birds,
fish, or
other
aquatic
life.”
65.
Section
3.550 of
the
Act, 415
ILCS
5/3.550
(2008),
provides:
“Waters’
means
all
accumulations
of
water,
surface
and
underground,
natural,
and
artificial,
public
and
private,
or
parts
thereof,
which
are
wholly
or
partially
within,
flow
through,
or
border
upon
this
State.”
66.
Under
Section
3.165
of
the
Act,
the
landscape
waste
that
HAMMAN
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.
16
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)
of
the
Act.
70.
Because
of
the
aforementioned
reasons,
HAMMAN
has
violated
sections
12(a)
and
12(d)
of
the
Act.
PRAYER
FOR
RELIEF
WHEREFORE,
Complainant,
UNITED
CITY
OF
YORKVILLE,
respectfully
requests
that
the
Board
enter
an
order
against
the
Respondent,
A.
Authorizing
a hearing
in
this
matter
at
which
time
the
Respondent
will
be
required
to
answer
the
allegations
herein;
B.
Finding
that
the
Respondent
has
violated
the
Act
and
regulations
as
alleged
herein;
C.
Ordering
the
Respondent
to
cease
and
desist
from
any
further
violations
of
the
Act
and
associated
regulations;
D.
Ordering
the
Respondent
to
pay
a
civil
penalty
of
$50,000 for
each
such
violation,
pursuant
to
Section 42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
E.
Ordering
the
Respondent
to
pay
an
additional
civil
penalty
of
$10,000 for
each
day
during
which
each
such
violation
continued,
pursuant
to
Section
42(a) of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
and
F.
Granting
such
other
relief
as
the
Board
may
deem
appropriate.
17
Respectfully
submitted,
Dated:
December
1,
2008
Thomas
G.
Gardiner
Michelle
M. LaGrotta
Nate
Lusignan
Gardiner
Koch
& Weisberg
53 W
Jackson
Blvd., Ste.
950
Chicago,
IL 60604
(312)
362-0000
UNITED
CITY OF
YORKVILLE,
Complainant,
18
