BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL
CORPORATION,
Complainant,
Y.
HAMMAN FARMS"
Respondents.
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PCB No. 08-96
(Enforcement-Land, Air, Water)
NOTICE OF FlLING
TO: SEE ATTACHED SERVICE LIST
PLEASE
TAKE NOTICE that on December 10, 2008, we electronically filed with the
Clerk
of the Illinois Pollution Control Board, Respondent's Reply in Support of its Motion for
Reconsideration, a copy ofwhich is attached hereto and hereby served upon you.
Dated:
December
10, 2008
Charles F. Helsten
Nicola Nelson
Hinshaw
& Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On behalf of HAMMAN FARMS
Is/Charles F. Helsten
Charles F. Heisten
One
ofIts Attorneys
70566463vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
HAMMAN FARMS,
Respondent.
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PCB No. 08-96
(Enforcement-Land, Air, Water)
RESPONDENT'S REPLY IN SUPPORT OF ITS MOTION FOR RECONSIDERATION
NOW COMES the Respondent, HAMMAN FARM:S, by and through its attorneys,
Charles F. Helsten and HINSHAW & CULBERTSON LLP, and for its Reply
in
Support of its
Motion for Reconsideration, states as follows:
Tbe Underlying Pleading: Hamman Farms' Motion to Strike and Dismiss
On July 8, 2008, Hamman Fanns filed a Motion to Strike and Dismiss in the instant case,
in which
it sought,
inter alia,
dismissal of Counts III and IV for lack of specificity. The Motion
argued that that both Count III and Count IV "fail[] to list '[t]he dates, location, events, nature,
extent, duration, and strength
of discharges or emissions and consequences alleged to constitute
violations of the Act and regulations.'
See
35 Ill.Adm.Code 103.204(c)(2)." (Hamman Farms'
Motion to Strike and Dismiss at
~21).
The motion argued that in addition to supplying sufficient
information to allow a Respondent to mount a defense, a complaint must also plead the
information listed in Section 103.204(c).
The Board'sOctober 16, 2008 OrdeT
On
October 16, 2008, the Board granted in part and denied in part Hamman Farms'
Motion to Strike and Dismiss. The Board dismissed Count III (Air Pollution) for lack
of
specificity, but declined to dismiss Count IV (Water Pollution) for lack of specificity. In
70582839vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
declining to dismiss Count IV, the Board opined that "the Act not only prohibits one from
causing water pollution but also from threatening to cause water pollution." (Board's Order at
24).
Although it would have been improper for Hamman Farms to dispute factual allegations
on a motion
to dismiss, the Board opined that Hamman Farms' motion to dismiss had not
challenged Yorkville's factual allegation that Hamman Farms began to apply landscape waste
to
its fields in an amount exceeding the statutory default rate before IEPA concluded that it was
appropriate for Hamman Farms
to apply the material at the higher rate. (Board's Order at 23-
24).
I
Noting the alleged application of material at a rate above the default rate, the Board stated
that "Hamman does not dispute that the improper handling
of landscape waste can lead to the
pollution
of groundwater." (Board's Order at 24)(emphasis added).
The Board then concluded that because the Complaint alleges that Hamman Farms
improperly applied landscape waste
to its fields, thereby discharging a "contaminant" into the
environment,
it would be inappropriate to dismiss Count IV because the Board couldn'tconclude
that there was no set
of facts that would entitle Yorkville to prevail on its water pollution
allegations.
(See
Board's Order at 25). However, the Board's Order did not address the
specificity requirements
of 35 Ill.Adm.Code 103.204(c) with respect to Count IV.
Hamman Farms' Motion for Reconsideration
In its Motion for Reconsideration, Hamman Farms urged the Board to reconsider its
application
of the law with respect to the pleading requirements of 35 m.Adm.Code
l03.204(c)(2) as
to Count IV. Hamman Farms argued that the same failure to plead "[t]he dates,
I
Hamman Farms has not admitted, and does not admit, Yorkville's allegation that material was applied to Hamman
Fanns' fields at an improper rate.
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70582839vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
location, events, nature, extent, duration, and strength of discharges or emissions and
consequences alleged to constitute violations
of the Act and regulations" (again, as required by
35 Ill.Adm.Code 103.204(c») which the Board found to be fatal to Count III, was also fatal to
Count
IV.
Because Count
IV alleges Water Pollution violations of Section 12(a) and 12(d) without
pleading the dates, location, extent, duration, and strength
of discharges or emissions, as required
by the Act and the Rules, Hamman
Farms urged the Board to reconsider its application of the
law.
Yorkville'sResponse to the Motion for Reconsideration
Yorkville erroneously claims that in its Order, the Board found that Count
IV
of
Yorkville's Complaint "included the requisite dates, locations, extent, duration, etc."
(Yorkville's Response at 2-3). In fact, the Board made no such finding. Rather, the Board held
that "improper handling
of landscape waste can lead to the pollution of groundwater." (Board's
Order at 24)(emphasis added). Then, without ever addressing the absence
of any "dates,
locations, extent, duration, etc." (which the Board found to
be fatal to Count III), and without
ever discussing or applying
35 III.Adm.Code l03.204(c), the Board announced that
H[c]onsidering the entire complaint, the Board finds that Yorkville's allegations satisfy the
pleading requirements, including the requirement
to advise Hamman so as to reasonably allow
Hamman
to defend itself against the alleged violations of Section 12(a) and 12(d)." (Board's
Order at 25). Thus, Yorkville's allegation that the Board held Yorkville had adequately pled the
requisite "dates, locations, extent, duration, etc." misrepresents the Board's
fIndings as to Count
IV.
Yorkville also erroneously alleges that Hamman Farms' "only attempt at explanation" for
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70582839v1 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
why the Board should reconsider its ruling on Count
N
was Hamman Farms' conclusion that it
would have decided the issue
of pleading specificity differently. (Yorkville's Response at 3).
Yorkville thereby misrepresents the thrust
of the arguments in Hamman Farms' Motion for
Reconsideration. In its motion, Hamman Farms pointed to and quoted the detailed pleading
requirements
of 35 Ill.Adm.Code 103.204, which expressly require that all complaints, not just
air pollution complaints, include the "dates, location, events, nature, extent, and strength
of
discharges or emissions and consequences alleged to constitute violations of the Act and
regulations." (Yorkville's Motion at
~~
5, 8, 11, 12, quoting 35 Ill.Adm.Code 103.204(c».
Therefore, the Board's finding that the Complaint failed
to plead the mandatory information and
so failed to state an air pollution violation (Count III), should also have resulted
in a finding that
the Complaint failed to state a water pollution violation (Count
N).
Yorkville also erroneously asserts in its Response that the Board's decision to dismiss
Count III was
not based on the absence of dates, location, nature, extent, and strength of
discharges or emissions, but was instead simply based solely on Yorkville's failure to adequately
plead allegations demonstrating "unreasonable interference." (Yorkville's Response at 3).
Contrary
to the representations in Yorkville's brief, the Board expressly held that it was
dismissing Count III
as insufficiently pled (Board's Order at 18), and in explaining the failure of
Count III to satisfy the pleading requirements, stated that:
absent the ultimate facts on the dates or frequency and duration
of
the alleged odor emissions and the nature and extent of the
allegedly resulting interference, Yorkville's complaint does not
meet the pleading requirements
...
(Board'sOrder at 21)(emphasis added).
Thus, Yorkville's Response not only misstates Hamman
Fauns' arguments, it also
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Electronic Filing - Received, Clerk's Office, December 10, 2008
misrepresents the Board'sholding in the case.
The
Board
Did
Not Apply 35 Ill.Adm.Code l03.204(c) to Count IV
As set forth in Hamman Farms' Motion for Reconsideration, the pleading requirements
of 35 Ill.Adm.Code 103.204(c) apply to all complaints alleging violations of the Act, including
those alleging water pollution violations.
As there are no special pleading rules for water
pollution violations, on motions to dismiss, this Board applies the specificity requirements
of 35
II
I.
Adm.Code l03.204(c) in assessing alleged violations of Section 12 of the Act.
See, e.g.,
George R. Strunk
v.
Williamson Energy LLC (Pond Creek Mine
#1), PCB 07-135 at *9 (Dec. 20,
2007) (citing
35 111. Adm. Code l03.204(c)(2» (finding that complaint's failure
to
plead "[t]he
dates, location, events, nature, extent, and strength
of discharges or emissions and consequences
alleged
to constitute violations of the Act and regulations" mandated dismissal of claims
purporting to state violations
of Section 12(a), (b), and (d».
The fact that the Act prevents discharges that cause water pollution (Section 12(a», as
well as those that tend
to cause water pollution (Section 12(d», does not negate the pleading
requirements
of Section 103.204(c). Moreover, contrary to the Board's apparent assumption in
its Order, "[t]he mere presence of a potential source of water pollutants on the land does not
necessarily constitute a water pollution
hazard," and therefore a discharge of "contaminant" onto
the ground does not create the threat
of pollution.
See Bliss
v.
IEPA,
138 m.App.3d 699, 704,
485 N.E.2d 1154 (5
th
Dist. 1985)(holding that evidence showing TeE-contaminated oil had been
deposited "in a quantity sufficient to puddle on the surface
of the ground" near the Mississippi
River, in an area prone
to leaky artesian conditions, was not sufficient to demonstrate the
presence
of a water pollution hazard). Thus, it is not sufficient for Yorkville to state a water
pollution violation by simply alleging that the Respondent plowed landscape waste material into
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70582839vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
the ground, and in so doing discharged a contaminant into the environment, thereby creating a
threat
of water pollution because doing so has the potential to lead to water pollution.
See id.
Setting the bar for pleading so low would have serious public policy implications, making it
possible for a citizen to state water pollution claims against any
fanner who applies natural or
chemical fertilizers, pesticides, or other products designed to enhance yields, to his or her fields.
There is a sound policy reason for the specificity requirements
in pleading environmental
violations, as confirmed
by this Board in
Strunk,
and the Board is accordingly obliged to apply
those requirements to all complaints, including the Complaint filed
by Yorkville.
Conclusion
The Board's Order of October 16,2008 declined to apply the pleading requirements of35
IlI.Adm.Code 103.204(c) to Count IV. Accordingly, Hamman Farms requests that the Board
reconsider its ruling concerning Count
IV, apply the specificity requirements to Count IV, and
dismiss Count
IV
for failing to meet the pleading requirements ofthe Act and the Rules.
WHEREFORE: Respondent,
Hamman Farms, respectfully requests that the Board
reconsider its October 16, 2008 Order, and to dismiss Count
IV for failure to comply with the
specificity requirements
ofthe Act and the Rules.
Dated:
December
10,2008
Charles F. Helsten
Nicola
Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford,
It
61105~1389
815-490-4900
6
Respectfully submitted,
On behalf ofHAMMAN FARMS
Is/Charles F. Helsten
Charles F. Helsten
One
ofIts Attorneys
70582839vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of CiviI
Procedure, hereby under penalty
ofperjury under the laws of the United States of America,
certifies that
on December 10,2008, she caused to be served a copy ofthe foregoing upon:
Mr. John T. Therriault, Assistant Clerk
l11inois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
(via electronic filing)
Bradley P. Halloran
Hearing Officer
lltinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 w. Randolph Street
Chicago, IL 60601
(via email: ballorab@ipcb.state.iLus)
Via electronic filing and/or e-mail delivery.
PCB No. 08-96
Charles
F. Helsten
Nicola
A. Nelson
HINSHAW &
CULBERTSON
100 Park
A
venue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH
&
WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago, IL 60604
tgardiner@gkw-Iaw.com
mlagrotta@gkw-Iaw.com
70567539vl 890522
6b799
Electronic Filing - Received, Clerk's Office, December 10, 2008
