BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATrON,
Complainant,
v.
HAMMAN FARMS"
Respondents.
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PCB No. 08-96
(Enforcement-Land, Air, Water)
NOTICE OF FILING
TO: SEE ATTACHED SERVICE
LIST
PLEASE TAKE NOTICE that on December 10, 2008, we electronically filed with the
Clerk of the Illinois Pollution Control Board, Respondent's Response in Opposition to
Yorkville's Motion for Leave to File Amended Complaint, a copy of which 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 of Its 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'SRESPONSE IN OPPOSITION TO YORKVILLE'SMOTION FOR
LEAVE TO FILE AMENDED COMPLAINT
NOW COMES the Respondent, HAMMAN FARMS, by and through its attorneys,
Charles F. Helsten and HINSHAW & CULBERTSON LLP, and for its Response in Opposition
to Yorkville'sMotion for Leave to File its Amended Complaint, states as follows:
Hamman Farms'Motion to Dismiss Count III (Air Pollution)
Hamman Farms filed a Motion to Strike and/or Dismiss on July 8,2008, seeking to strike
certain portions of Yorkville's Complaint, and seeking dismissal of Counts II, III, and IV of
Yorkvilie's Complaint.
With respect to Count III, Hamman Farms argued,
inter alia,
that:
Count III fails to comply with the Board'sprocedural rules, which require that the
complaint contain
«[t]he dates, location, events, nature, extent, and strength of
discharges or emissions and consequences alleged to constitute violations of the
Act and regulations."
35 TIl.Adm.Code 103.204(c). Yorkville's allegations in
Count III are nothing more than sweeping legal assertions, which lack the
specificity demanded
by the Rule. Count III should therefore be dismissed for a
failure to comply with the Board'sRules.
(Hamman Farms' Motion to Strike and/or Dismiss, at
p. 4).
The Board's Order Dismissing Count III
On October 16, 2008, the Board issued its ruling on Hamman Farms' motion, granting in
705829J8vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
part and denying in part the requests to strike and/or dismiss Yorkville's Complaint. The Board
granted the motion to dismiss Count III based on a lack of specificity. (Board's Order at 18,
granting "Hamman's alternative
mo~on
to dismiss count
ill
as insufficiently pled"). In doing so,
the Board explained that:
the count as pled does not satisfy the requirements
of the Act (415 ILCS 5/31 (c),
(d)(I) (2006»
or the Board's procedural rules (35 ill. Adm. Code 103.204(c)(2»
for the contents
of a complaint.
(Board's Order at 21).
The Board further opined that with respect to the lack
of specificity:
Yorkville has stated little more than the legal conclusion that the odor has resulted
in unreasonable interference with the enjoyment
of life and property.
See Village
of Mettawa,
249 111. App. 3d at 557, 616 N.E.2d at 1303 ("legal conclusions
unsupported
by allegations of specific facts are insufficient"). "[P]ure conclusions
[], even in administrative proceedings, are insufficient."
City of Des Plaines v.
PCB,
60 Ill. App. 3d 995, 1000,377 N.E.2d 114, 119 (1st Dist. 1978).
(Board'sOrder at 21).
The Board criticized the complaint's vague allegations, noting that Yorkville had merely
pled that "at unspecified times over the ensuing IS-year period, the Agency has received an
unspecified number
of complaints," thereby failing to provide sufficient detail to allow Hamman
Farms to prepare a defense, and also failing to comport with the pleading requirements
established
by the Act and the Rules. (Board's Order at 21-22)(emphasis added).
The Board warned 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's Order at 21).
Yorkville'sMotion for Leave to File an Amended Complaint
On December 1, 2008, Yorkville filed Motion for Leave to File Amended Complaint, in
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Electronic Filing - Received, Clerk's Office, December 10, 2008
which it requested leave to file a proposed Amended Complaint, a copy of which was attached to
its motion, in order "to sufficiently plead its position on Count ITI of the Original Complaint and
to satisfy 415 ILCS 5/31(c) and (d)(2) and 35 Ill.Adm.Code 103.204(c)(2)." (Yorkville'sMotion
for Leave, at '4).
The proposed Amended Complaint, however, is as defective as the original complaint,
and fails
to provide the specific facts required by the Rules, including "[tJhe dates, location,
events, nature, extent, and strength
of discharges or emissions and consequences alleged to
constitute violations
of the Act and regulations" as required by 35 m.Adm.Code 103.204(c).
Moreover, the proposed Amended Complaint fails to provide the missing information
that the Board expressly spelled out, in detail, in its Order, to wit: "the dates or frequency and
duration
of the alleged odor emissions and the nature and extent of the allegedly resulting
interference." (Board's Order at 21). The Complaint also fails to clarify the "unspecified number
of complaints" purportedly made "at unspecified times over the ensuing IS-year period."
(Board'sOrder at 21).
Instead
of providing the information delineated in the Board's Order, Yorkville seeks
leave
to file a Complaint that is identical to its original defective complaint, but for the following
one paragraph
of additional text
59. Specifically, the odor caused by Hamman Fanns 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 ofthe 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;
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70582918vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
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.
The Rules and cases are clear: the minimal pleading requirements for an air pollution
violation require that a complaint allege "[t]he dates, location, events, nature, extent, and strength
of discharges or emissions and consequences alleged to constitute violations of the Act and
regulations."
George R. Strunk v. Williamson Energy LLC (Pond Creek Mine
#1), PCB 07-135 at
*8 (Dec. 20, 2007) (citing 35 IlL Adm. Code 103.204(c)(2». Here, however, Yorkville simply
alleges that unidentified people, on unspecified dates over a fifteen year time span, on
an
unspecified number of occasions, for an unspecified length of time, chose to alter their behavior
due
to the alleged odor of yard waste in the area. Moreover, although the standard for air
pollution requires that there be "unreasonable" interference, Yorkville instead pleads the odor
caused "substantial" interference with residents' use and enjoyment
of their land. The proposed
Amended Complaint, therefore, utterly and completely fails to cure the defects previously
identified by the Board.
Conclusion
Here, Yorkville requests leave to file a complaint that is just as defective as its initial
complaint. The proposed Amended Complaint fails
to provide the information specifically
spelled out in the Board's Order dismissing Count III, and fails to meet the pleading
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Electronic Filing - Received, Clerk's Office, December 10, 2008
requirements ofthe Act and the Rules.
Because the "Amended Complaint" attached to Yorkville's Motion for Leave to File
Amended Complaint fails
to cure the fatal defects of Count III which were identified in the
Board's Order
of October 16, 2008, the Board should deny Yorkville's motion.
See Bd. of
Directors ofBloomfield Club Recreation Ass'n v. Hoffman Group, Inc.,
186 m.2d 419, 432, 712
N.E.2d 330, 337, 238 Ill.Dec. 608, 615 (1999) (setting forth the four factors to
be weighed in
detennining whether
to allow an amended complaint: "(1) whether the proposed amendment will
cure the defective pleading;
(2) whether the proposed amendment would surprise or prejudice the
opposing party;
(3) whether the proposed amendment was timely filed; and (4) whether the
moving party had previous opportunities
to amend") (emphasis added).
WHEREFORE: Respondent, Hamman Fanns, respectfully requests that the Board deny
Yorkville's Motion for Leave to File Amended Complaint, and grant such other and further relief
as it deems appropriate.
Dated:
December 10, 2008
Charles F. Helsten
Nicola Nelson
llinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On behalf
ofHAMMAN FARMS
Is/Charles
F. Helsten
Charles
F. Heisten
One
of Its Attorneys
This document utilized 1005'0 recycled paper products.
70582918vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
Procedure, hereby under penalty ofperjury under the laws ofthe United States ofAmerica,
certi ties that on December 10, 2008, she caused to be served a copy of the foregoing upon:
Mr. John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
(via
electronic filing)
Bradley P. Halloran
Hearing Officer
TlIinois 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 Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
Thomas G. Gardiner
Michelle
M.
LaGrotta
GARDINER KOCH & WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago,
IL
60604
tgardiner@gkw-Iaw.com
mlagrotta@gkw-law.com
70567539vl 890522 66799
Electronic Filing - Received, Clerk's Office, December 10, 2008
