CLERK;s
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARDDr
,
U
‘2008
UNITED
CiTY
OF
YORKVILLE,
A
)
piTTE
OFILLINOI
MUNICIPAL
CORPORATION,
)
LItio
Controi
BO$d
Petitioner,
)
)
PCB
No.
08-96
v.
)
Enforcement-Land,
Air,
Water
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
and
)
HAMMAN
FARMS,
)
Respondents.
)
NOTICE
OF
FILING
TO:
SEE
PERSONS
ON ATTACHED
SERVICE
LIST
PLEASE
TAKE
NOTICE
that
I
have
today
filed
with
the
Office
of
Clerk
of the
Illinois
Pollution
Control
Board,
an
original
and
nine
copies
each
of
PETITIONER’S
RESPONSE
TO
RESPONDENT’S
MOTION
FOR
RECONSIDERATION,
copies
of
which
are
herewith
served
upon
you.
Respectfully
submitted,
Dated:
December
1, 2008
Thomas
G.
Gardiner
Michelle
M.
LaGrotta
GARDNER KOCH
&
WEISBERG
53
W
Jackson
Blvd.,
Ste. 950
Chicago,
IL 60604
(312)
362-0000
Atty
ID: 29637
UNITED
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
RESPONSE
TO
RESPONDENT’S
MOTION
FOR
RECONSIDERATION, upon:
Mr.
John
T.
Therriault,
Assistant
Clerk
Illinois
Pollution
Control Board
100
West
Randolph
Street
James
R.
Thompson
Center,
Suite
11-500
Chicago,
Illinois
60601-32
18
(via
hand
delivery)
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Ste.
22-5
00
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@hinshawlaw.com,
and
U.S.
Mail)
ti7i
/I>
Michelle
M.
LaGrotta
BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOARD
C
2008
UNITED
CITY
OF
YORKVIL.LE,
A
)
POllution
SThi
OF
Controj
ILL1N
MUNICIPAL
CORPORATION,
)
Complainant,
)
)
PCB
No.
08-96
v.
)
(Enforcement-Land,
Air, Water)
)
HAMMAN
FARMS,
)
Respondent.
)
YORKVILLE’S
RESPONSE
TO
RESPONDENT’S
MOTION
FOR
RECONSIDERATION
NOW
COMES,
the
Complainant,
United
City
of
Yorkville,
by
and
through
its
attorneys,
Gardiner
Koch
Weisberg
&
Wrona,
and
hereby
responds
to
Respondent’s
Motion
for
Reconsideration.
In response
to
the
Respondent’s
Motion
for
Reconsideration,
it states
as
follows:
I.
STANDARD
OF
REVIEW
In
ruling
upon
a
motion
for
reconsideration,
the
Illinois
Pollution
Control
Board
(hereinafter referred
to
as “Board”)
will
consider
factors
including
new
evidence,
or
a change
in
the
law,
to
conclude
that
the
Board’s
decision
was
in
error.
34 Ill.
Admin.
Code
§
101.902.
The
Board
also
has noted
that
“the
intended
purpose
of
a
motion
for
reconsideration
is
to bring
to
the
court’s
attention newly
discovered
evidence
which
was
not
available
at the
time
of
the hearing,
changes
in the
law
or
errors
in
the
court’s
previous
application
of
the
existing
law.”
Citizens
Against
Regional
Landfill
v.
county
board
of
Whiteside,
PCB
93-156
(March
11, 1993,
citing
Korogluyenv. Chicago Title
&
Trust
Co.,
213
Ill. App.
3d 622,
627,
572
N.E.2d
1154,
1158(1st
Dist.
1992).
To
prevail
on
its
motion
for
reconsideration,
Respondent
Hamman
Farms
must
establish
one
of the
following
to
justify
reconsideration
of
the
Board’s
October
16,
2008
order:
(1)
newly
1
discovered
evidence;
(2)
changes
in
the law;
or
(3)
error
in the
court’s
previous
application
of
the
existing
law.
Here,
Hamman
Farms
does
not
raise
any
argument
as
to
newly
discovered
evidence
or
changes
in the
law.
Because
Hamman
Farms’
argument
that
the
Board
misapplied
the
law
is
groundless,
Hamman
Farms’
Motion
for
Reconsideration
must
be
denied.
IL
THE
BOARD
CORRECTLY
APPLIED
THE
LAW
TO
COUNT
IV
Hamman
Fann’s Motion
fails
to identify
in
what
way
the
Board
misapplied
the
law
or
misinterpreted
the
law
or
otherwise
applied
the
wrong
standard.
Instead,
Hamman
Farms
mischaracterizes
the
basis
of
the
Board’s
decision
to
dismiss
Count
III
of
the
United
City
of
Yorkville’s
Complaint
in
its
attempt
to
argue
that
Count
IV
should
also
be
dismissed.
Ultimately, review
of
the
October
16,
2008
order
demonstrates
that
not
only
did
the Board
use
the
correct
standard
in
evaluating
Hamman Farm’s
Motion
to
Strike
and/or
Dismiss,
the
Board
also
correctly
applied
that
standard.
Most
importantly,
the
Board
correctly
describes
and
applies
the
standard
for
evaluating
whether
a
Complaint’s factual
allegations
are
sufficient
to
withstand
a
Motion
to Strike
and/or
Dismiss.
On
pages
14-15
of
the
Board’s
Opinion
and
Order
of
October
16,
2008,
the
Board
outlines
the
law
governing motions
to
strike
or dismiss
pleadings,
giving
particular
emphasis
to
the
law
governing
fact-pleading.
Particularly,
the
Board
considered
the
Complaint
as
a
whole
and
took
all
well-pled allegations
of
the
complaint
as
true
and
drew
all
reasonable
inferences
from
them
to
determine
that
there
were
sufficient
allegations
to satisfy
the
pleadings
requirements.
The
Board
noted
that
Yorkville
made
allegations
that
Hamman
Farms
exceeded
the
agronomic rate
of 20
tons
per
acre
per
year
from
approximately
fifteen
years
before
the
Agency
issued
the
May
1, 2008
determination.
Additionally,
in applying
the
law
to the
factual
allegations, the
Board
correctly
determined
that
these
allegations
were
adequate
for
Count
IV
to
2
survive
a
motion
to
dismiss
because
they
included
the
requisite
dates,
locations,
extent,
duration
etc.
Hamman
Farms’
only
attempt
at
explanation
of
its
misapplication
argument
is
that
because
Hamman
Farms
concluded
that
Count
IV
failed
to
meet
specificity
requirements,
then
the Board’s
finding
that Count
IV
was sufficient
must
somehow
reflect
a
misapplication
of
the
relevant
law. See
page
5
¶
13
of
the Respondent’s
Motion
for
Reconsideration.
In other
words,
Harnman
Farms
bases
its
argument
on
the
fact that
Hamman
Farms
would
have
decided
differently.
However,
as is well
known
in
the appellate
world,
even
though
one
would
have
decided
differently,
that
does
not
result
in the
conclusion
that
the
law
was
misapplied
or
the
decision
was
erroneous.
Abrahamson v.
Illinois
Dept of
Professional
Regulation,
153
Iii.
2d
76,
88 (1992).
Thus,
Hamman
Farms’
argument
is
insufficient
to
warrant
reconsideration
of
the
Board’s
order
because
there
is
no
misapplication
of
the
law.
Finally,
Hamman
Farms’
additional
argument
for reconsideration
is fallacious.
This
argument
can
be summarized
as
the following:
because
Count
III was
dismissed
and Count
IV
was
presented
in
a similar
manner
to
Count III,
Count
IV likewise
must
be deficient
and
also
dismissed.
Unfortunately,
Hamman
Farms
incorrectly
describes
the
basis
for
which
Count
III
was
dismissed.
In contrast
to
Hamman
Farms’
assertion
that Count
III was
dismissed
for
lack
of
specificity,
the
Board’s
decision
focused
on Yorkville’s
failure
to allege
facts
demonstrating
that
“the
odor
resulted
in unreasonable
interference
with
the
enjoyment
of
life and
property.”
See
page
21 of
the
October
16,
2008
Board
Order,
attached
hereto
as
Exhibit
A.
The
Board
specifically found
that
Yorkville’s
statement
was
“little
more
than
the legal
conclusion.”
Id.
Because
Yorkville
failed
to
include
factual
allegations
that demonstrated
“unreasonable
interference,”
a
necessary
element
to
the
air
pollution
claim,
the
Board
held
that
“no
set of
facts
3
could
be
proven
that
would
entitle
Yorkville
to
prevail
on
the
air
pollution
claim.”
See
page
22
of
the Board’s
Order.
Unlike
Count
III,
Count
IV,
which
asserts
a
water
pollution
claim,
does
not
include
any
similar
legal
conclusions. Moreover,
Yorkville
does
not
need
to
make
a
showing
of
“unreasonable
interference”
to establish
a prima
facie
case
of
water
pollution.’
As
a
result,
Hamman
Farms’
argument
is
erroneous,
and
the
Motion
for
Reconsideration
must
be
denied.
WHEREFORE,
the
United
City
of
Yorkville
respectfully
requests
the Board
deny
Respondent’s
Motion
for
Reconsideration
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
In
its
Formal
Complaint,
Yorkville
asserts
violations
of
sections
12(a)
and
12(d)
of the
Environmental
Protection
Act.
To
establish
a
violation
of
section
12(a),
one
must
demonstrate
that
the polluter
“cause[dJ
or threaten[ed}
or
allow[ed]
the
discharge
of
any
contaminant
into
the environment
in
any
State
so
as
to cause
or tend
to
cause
water
pollution
in Illinois...” 415
ILCS
5/12(a).
To
establish
a
violation
of
12(d),
one
must
demonstrate
that
the
polluter
“deposit[edj
any contaminants
upon
the
land
in
such
place
and
manner
as to create
a
waterpollution
hazard.”
415
ILCS
5/12(d).
Notably
missing
from
the
elements
of
a water
pollution
claim
is
any
allegation
of “unreasonable
interference.”
4