BEFORE THE ILLINOIS POLLUfION CONTROL BOARD

UNITED CITY OF YORKVILLE, A

MUNICIPAL CORPORATION,

Complainant,

HAMMAN FARMS"

Respondents.

)

PCB No. 08-96

(Enforcement-Land, Air, Water)

NOTICE OF FILING

TO: SEE ATTACHED SERVICE LIST

PLEASE TAKE NOTICE that on December 11, 2008,

we electronically filed with the

Clerk

of the Illinois Pollution Control Board, Respondent's Reply in Support of its Motion to

Dismiss Counts I and II as Duplicative, a copy

of which is attached hereto and hereby served

upon you.

Dated:

December 11,2008

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. Helsten

One

of Its Attorneys

70566463v] 890522 66799

Electronic Filing - Received, Clerk's Office, December 11, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE, A

MUNTCIPAL CORPORATION,

Complainant,

HAMMAN FARMS,

Respondent.

)

PCB No. 08-96

(Enforcement-Land, Air, Water)

RESPONDENT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS COUNTS I

AND

II AS DUPLICATIVE

NOW COMES the Respondent, HAMMAN FARMS, by and through its attorneys,

Charles F. Heisten and HINSHAW

CULBERTSON LLP, and for its Reply in Support of its

Motion to Dismiss, states as follows:

Procedural History

On July 8, 2008, Hamman Fanus filed a Motion to Strike and Dismiss in the instant case.

The motion was fully briefed by the parties, with Hamman Farms filing a Reply on August 1,

2008. In its motion, Hamman Farms argued that Counts I and II of the complaint

this action

were duplicative

of the complaint simultaneously filed by Yorkville in PCB 08-095. On August

8,2008, the Board dismissed Yorkville'sother complaint (in PCB 08-095).

On September 17, 2008, after the motion to dismiss in this action (PCB 08-096) had been

fully briefed, and while the parties were awaiting a ruling from the Board, the Attorney General

filed an enforcement action against Hamman Fanns in Kendall County Circuit Court which is

entirely duplicative

ofthis action.

October 16,2008, the Board issued its ruling on the motion

to dismiss in this action, granting in part and denying in part Hamman

Fanns' motion. Hamman

Fanns received a copy

of the Board's Order on October 23,2008. The Board's Order denied the

request for dismissal of Counts I and II as duplicative of PCB 08.095, as that action had been

70582700v] 890522 66799

Electronic Filing - Received, Clerk's Office, December 11, 2008

dismissed by that time.

Thereafter, on November 17, 2008, Respondent Hamman Farms filed a Motion to

Dismiss Counts I and II

ofYorkville's Complaint as duplicative ofthe Attorney General's action

in Kendall County Circuit Court (which was filed

on September 17,2008) and alleges the same

causes

of action as those alleged in Counts I and II of this action. Hamman Farms attached a

copy

of the Attorney General's Complaint, docketed as 2008-CH-0811, to its November 17,

2008 Motion to Dismiss.

On infonnation and belief, the Board had not reviewed the Attorney

Generars complaint in case number 2008-CH-0811 (16

Judicial Circuit), prior to November

17,2008.

Yorkville'sAllegation

that the Board has Already Found Counts I and II are Not

Duplicative of the Attorney General'sSeptember 17, 2008 Complaint is Patently False

Yorkville'sresponse to the pending Motion to Dismiss erroneously alleges that the Board

held, in its October 16, 2008 Order, that Counts I and II were not duplicative

of the Attorney

General's Complaint in 2008-CH-0811. (Yorkville's Response at pp. 1-2). Inasmuch as the

Board did not receive a copy

of the Attorney General's Complaint until November 17, 2008,

Yarkville misstates the facts. To support its assertion that the Board ruled on this question in its

October 16, 2008 Order, Yorkville points to a footnote in the October 16, 2008 Order

in which

the Board took note that it had learned, from a pleading filed in PCB 08-095, that "a complaint"

had been filed against Hamman Farms

by the Attorney General. However, the fact that the

Board noted "a complaint" had been filed by the Attorney General hardly equates with a finding

by the Board that Counts I and II in this action are not duplicative of the Attorney General's

action.

Yorkville appears to be unaware of the fact that in every case filed with the Board, before

accepting a case and setting it for hearing, the Board must make a threshold determination as to

70582700vl 890522 66799

Electronic Filing - Received, Clerk's Office, December 11, 2008

whether a complaint is duplicative or frivolous.

See

35 ill.Adm.Code 101.202. Here, in response

to the July 8,2008 motion, which was fully briefed before the Attorney General'scomplaint was

ever filed, the Board found that

as modified, the complaint was neither frivolous nor duplicative,

based on matters in the record at that time, and was therefore suitable for hearing.

is worth remembering, at this juncture, that in its July 8 2008 motion, Hamman Farms

had urged that portions

of Yorkville's Complaint were duplicative of the action Yorkville

simultaneously filed in PCB 08-095. Obviously, Hamman Fanns could not argue the

duplicativeness

of the Attorney General's complaint in July, inasmuch as the Attorney General's

complaint was not filed until well after the July motion had been fully briefed and the parties

were awaiting an order.

The Board ultimately held that the complaint in PCB 08-096 was not

duplicative

of PCB 08-095, and issued the necessary declaration that the Complaint, as modified,

was neither duplicative nor frivolous. (Order at p. 26).

Yorkville's entire argument that the Board has already held that the complaint is not

duplicative

of the Attorney General's action therefore hinges on a footnote, in which the Board

explained that it took notice, from a pleading filed in PCB 08-095, that

"a complaint" had been

filed

by the Attorney General on September 17, 2008, and was currently pending. (Order at FN

11). The Board did not address the contents of the Attorney General's Complaint, and indeed

there

is no reason to believe that the Board had ever seen a copy of the Attorney General's

complaint prior

to November 17, 2008. Thus, it is entirely unremarkable that the Board did not

address the question

of whether this action is duplicative of the Attorney General's pending

action. Instead, the Board simply held that based on the information present in the record at that

The Board's October 16, 2008 Order memorializes Hamman Fanns' argument regarding the duplicativeness of

PCB 08-095 and PCB 08-096, as well as Yorkville's rejoinders. (See Order at pp. 7, 9,11, 16).

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Electronic Filing - Received, Clerk's Office, December 11, 2008

time, it was accepting the case for hearing. (October 16,2008 Order at p. 26) (emphasis added).

Yorkville decries the fact that Hamman Farms did not file

an additional motion to

dismiss, raising the Attorney General's September

17, 2008 complaint, while the parties were

awaiting a ruling from the Board on the July

8, 2008 motion to strike and dismiss.(Yorkville's

Response

at FN 1). However, it was perfectly reasonable for Hamman Farms to await a ruling on

the pending motion before bringing new and additional matters

to the attention of the Board prior

to its ruling. Had the Board found

Hamman Farms' favor on the July 8, 2008 motion, there

would have been no reason for Hamman Farms

to file a motion raising the matter ofthe Attorney

General'saction.

Yorkville's

Argument that Hamman Farms' Motion is Untimely Relies Upon Impossibility

According

to Yorkville, this motion is untimely because Hamman Farms was required to

challenge Counts I and II as duplicative of the Attorney General's September 17,2008 complaint

months before that complaint was even filed. (Yorkville's Response at

p. 2). Yorkville asserts

that Hamman Farms would suffer no material prejudice

by being required to file such a motion

by July

18, 2008, nothwithstanding the fact that Hamman Farms did not know of the Attorney

General's complaint until it was filed in September. This argument, which requires a party to

perfonn

an impossibility, is illogical at best.

Upon receiving a copy

of the Board's ruling on the July motion, Hamman Fanns acted

promptly, filing the pending motion and attaching a copy

of the Attorney General's complaint

within approximately three weeks.

would have been a waste of attorney and Board resources

for Hamman Farms

to have filed an additional motion, initiating an additional round of briefing,

while the Board was considering but had not yet ruled on the prior motion. Accordingly,

Yorkville's argument that the Board must strike or deny Hamman Farms' motion based on the

70582700vl 890522 66799

Electronic Filing - Received, Clerk's Office, December 11, 2008

Attorney General's September 17,2008 complaint, because the motion was not filed by July 18,

2008

is baseless.

Citizen Suits

Must Yield to Actions by the Attorney General

Yorkville seeks to dissect and distinguish

Village ofDePue,

purporting thereby to avoid

the underlying principle articulated

by the Seventh Circuit Court of Appeals in that case, to wit,

once the State has become involved in prosecuting

an environmental action, local interests must

yi eld because an allegedly polluted site is not solely a matter of local concern.

Village ofDePue,

JIl.

v. Exxon Mobil Corp.,

537 F.3d 775, 789 (i

Cir. 2008). Indeed, as Yorkville points out, the

Act provides for citizen enforcement actions, but it also provides that the Board cannot hear

actions that are duplicative

of another pending action. 35 Ill.Adm.Code 101.202 (emphasis

added).

The rule against hearing duplicative actions

has a parallel in civil litigation in the courts.

As the Illinois Supreme Court has explained, "[ilt is entirely clear that the pendency before

different judges

of separate suits involving identical parties and issues is incompatible with the

orderly and efficient administration

ofjustice."

People ex rei. Phillips Petroleum Co.

Gitchoff,

65 I11.2d 249, 257, 357 N.E.2d 534, 538 (1976). The parties need not be strictly identical for

suits

to be duplicative, because an Attorney General action filed in the name ofthe People of the

State

of Illinois is brought on behalf of all of the people in the state, including those adversely

affected by the defendant's alleged violations.

Bonovich

Convenient Food Mart, Inc.,

fll.App.3d 884, 886, 310 N.E.2d 710, 711 (lll.App.Ct. 1974);

see also Jackson

Cal/an Pub.,

Inc.,

356 IlI.App.3d 326, 338, 826 N.E.2d 413, 426 (IlLApp.Ct. 2005). Indeed, as long as the

litigants' interests are the same or very similar, strict identity

is not required.

Hapag-Lloyd

(America),

Inc.

Home Insurance Co.,

312 m.App.3d 1087, 1092, 729 N.E.2d 36, 40 (2000);

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Electronic Filing - Received, Clerk's Office, December 11, 2008

Kapoor v. FUjisawa Pharmaceutical Co., Ltd.,

298 Ill.App.3d 780, 786, 699 N.E.2d 1095 (1998);

Doutt

Ford Motor Co.,

276 IlI.App.3d 785, 788, 659 N.E.2d 89, 92 (1995);

Schnitzer

O'Connor,

274 Ill.App.3d 314, 319, 653 N.E.2d 825, 828 (1995);

Katherine M.

Ryder,

254

I1LApp.3d 479, 487, 627 N.E.2d 42, 48 (1993);

Skipper Marine Electronics, Inc. v. Cybernet

Marine Products,

200 IlI.App.3d 692,695-96,558 N.E.2d 324,326 (1990).

Yorkville appears unwilling

to accept that only one of the two cases can go forward at a

time. However, where the Attorney General has made the decision to bring to bear the full

resources

of the State in prosecuting the same cause(s) of action against Hamman Farms, it is the

State whose case should proceed.

See Jackson

Callan Pub., Inc.,

356 Ill.App.3d 326, 339,826

N.E.2d 413, 427 (IlI.App.Ct. 2005) (holding that where private plaintiffs' and the Attorney

General's interests are aligned, plaintiffs' right

to maintain an action is subordinate to that of the

Attorney General).

Counts I

and II are Duplicative of the Attorney General's Action

Yarkville argues that the cases are not identical because the Attorney General's action

alleges violations occurring over a shorter period

oftime than does Yorkville's action. However,

the length

of time during which violations allegedly occurred would go only to the remedy, not

the question

of whether Hamman Fanns violated the environmental laws cited by both the

Attorney General and Yorkville. When determining whether two pending actions are duplicative

of one another, the crucial inquiry is " 'whetherthe two actions arise out of the same transaction

or occurrence [citation}, not whether the legal theory, issues, burden

of proof or relief sought

materially differ between the two actions.' "

Combined Ins.

Co. of America

Certain

Underwriters at Lloyd's London.

356 Ill.App.3d 749, 753, 826 N.E.2d 1089, 1094 (Ill.App.Ct.

2005)(emphasis added) (quoting

Kapoor

FUjisawa Pharmaceutical Co., Ltd.,

298 Ill.App.3d

70582700v! 890522 66799

Electronic Filing - Received, Clerk's Office, December 11, 2008

780, 786,699 N.E.2d 1095 (Ill.App.Ct. 1998) and

Terracom Development Group, Inc.

Village

of Westhaven,

209 Il1.App.3d 758, 762, 568 N.E.2d 376 (Ill.App.Ct. 1991». Therefore,

Yorkville's argument

that

its

action is distinguishable because the alleged violations went on for

a longer period of time is ofno moment.

WHEREFORE: Respondent,

Hamman Fanns, respectfully requests that

the

Board grant

its Motion to Dismiss Counts I and II as duplicative.

Dated:

December

11,2008

Charles F. Helsten

Nicola Nelson

Hinshaw & Culbertson

LLP

I00 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

Respectfully submitted,

On behalf of HAMMAN FARMS

IslCharles F. Helsten

Charles F. Helsten

One of Its Attorneys

70582700vl 890522 66799

Electronic Filing - Received, Clerk's Office, December 11, 2008

AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil

Procedure, hereby under penalty

ofpeIjury under the laws of the United States of America,

certifies that on December

11,2008, 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

l11inois Pollution Control Board

James

R. Thompson Center, Suite 11-500

100

w. Randolph Street

Chicago,

IL 60601

(via email: hallorab@ipcb.state.iI.us)

Via electronic filing and/or e-mail delivery.

PCB No.

08-96

Charles F. Heisten

Nicola

A. Nelson

HINSHAW & CULBERTSON

00 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-law.com

mlagrotta@gkw-Iaw.com

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Electronic Filing - Received, Clerk's Office, December 11, 2008