BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
UNITED
CITY OF YORKVIlii,
A
)
DEC
2
2008
MUNiCiPAL
CORPORATION,
)
P tt
STATE
OF
ILLINOS
)
PCB
No.
08-96
Pollution
Contrd
Board
v.
)
Enforcement-Land,
Air, Water
)
iLLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
and
)
TIAMMAN
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
Complainant’s
Motion for
Leave
to
File Reply
in Support
of
its Motion
for Leave to
File Amended
Complaint and
Complainant’s
Reply
in Support
of its Motion for
Leave to File
Amended
Complaint,
copies
of
which
are herewith
served
upon
you.
Dated:
December
24, 2008
Thomas
G.
Gardiner
Michelle M. LaGrotta
Nathan P. Lusignan
GARDINER
KOCH
&
WEISBERG
53
W
Jackson
Blvd., Ste.
950
Chicago,
IL
60604
(312)
362-0000
Atty
ID: 29637
Respectfully
submitted,
UNITED
THIS FILING IS
SUBMiTTED
ON RECYCLED PAPER
CERTIFICATE OF
SERVICE
I, Thomas
G.
Gardiner, the undersigned certify that
on December
24, 2008, 1
have served
the
attached Complainant’s Motion for Leave
to
File
Reply in Support
of
its Motion for
Leave to
File Amended Complaint and Complainant’s Reply in Support of its 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, lilmois 60601-32 18
(via
hand delivery)
Bradley P. Halloran
Hearing
Officer
Illinois PollutionControl Board
James
R.
Thompson
Center,
Ste. 22-5
00
100 W Randolph Street
Chicago, IL 60601
(via
hand delivery)
Charles F. Helsten
Nicola
A.
Nelson
Hinshaw
&
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL
61105-1389
(via email to:
NNelson@hinshawlaw.com
and
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
UNiTED
CITY OF YORKVILLE,
)
A
MUNICIPAL
CORPORATION,
)
)
Complainant,
)
)
PCB No. 08-96
v.
)
(En
fo
CLERK’S
OFFICE
HAMMAN
FARMS,
)
DEC
242008
Respondent.
)
STATE
dF
ILLINOIS
Pollution
Control
Board
COMPLAINANT’S
REPLY IN
SUPPORT OF ITS
MOTION
FOR LEAVE TO FILE
AMENDED
COMPLAINT
NOW
COMES,
the Complainant, UNITED
CITY
OF YORKVILE,
by
and through its
attorneys,
Gardiner Koch
Weisberg
&
Wrona,
and for
its
Reply in Support of
its Motion
for
Leave
to
File Amended Complaint,
it states as
follows:
BECAUSE COMPLAINANT’S
AMENDED
COMPLAINT
CURES
THE
DEFECT,
THE
BOARD
SHOULD GRANT
ITS
MOTION
FOR LEAVE
Factors to consider
when ruling on a Motion
for
Leave
to File an Amended
Complaint
are:
(1) if the proposed
amendment
would
cure a defect in
the pleadings;
(2) if the proposed
amendment would prejudice
or surprise other
parties;
(3)
if
the proposed amendment
is timely;
and
(4) if
there
were previous opportunities
to amend
the pleading.
Clemens
v. Mechanical
Devices Co., 781
N.E.2d
1072, 1080 (Ill. 2002).
In
this case,
the proposed amendment
cures
the
defects
in
the Original Complaint
by
providing
facts
describing the effect
of the odor
on the
residents
of
Yorkville, rather than
solely relying
on a legal
conclusion
for its allegation
that the
odor
unreasonably interferes
with the lives and
property
of
Yorkville residents.
Moreover,
the
proposed
Amended
Complaint is
timely; is
Yorkville’s
first attempt to
amend
the
Original
Complaint;
and would
not prejudice
or surprise
Respondent,
Hamman
Farms.
As a
result,
the
Board should
grant
Yorkville’s
Motion
ror
Leave
to
File
Amended
Complaint.
Respondent
misstates
the
Board’s
basis
for dismissing
without
prejudice
Count III
of
Complainant’s
Original
Complaint
and
wrongly
contends
that Complainant’s
Amended
Complaint
is deficient.
Respondent
alleges
that
Complainant’s
Original
Complaint
was
dismissed
for
lack of specificity
as
to
dates and
times of the
air
pollution
Yet,
the
Board’s
Order,
dismissing
Count
III
without
prejudice,
focused
on Yorkville’s
reliance
on the
legal
conclusion
“that
the odor
resulted
in
unreasonable
interference
with
enjoyment
of life
and
property”
without
factual
allegations
to
support
this conclusion.
See
page 21
of the
Board’s
Order
and
Opinion dated
October
16,
2008.
Paragraph
59, when
taking all
well-plead
allegations
in
the
complaint
as
true, provides
sufficient
facts
to meet
the
pleading
requirements
and
reasonably
allow Hamman
Farms
to
prepare
a
defense.
Specifically,
paragraph
59
documents
how
Yorkville
residents
reacted
to
the
odor emitted
from
Respondent’s
land.
These
reactions
indicate
the
nature,
extent,
duration,
and strength
of
Respondent’s
emissions.
Because
the
Amended
Complaint
cured
the
defects
of the
Original
Complain,
the Board
should
allow
Yorkville
to
file
its
Amended
Complaint.
Furthermore,
the Amended
Complaint
includes
the
necessary
facts
that Respondent
requests.
For
example,
Paragraph
2
of the
Amended
Complaint
explains
that
the odor
arises
from the
location
of
“approximately
2200
acres
of
land in Kendall
County,”
referred
to
as
Hamman
Farms.
Paragraphs
13 and 34
of the
Amended
Complaint
discuss
specific
dates
and
events
when
Respondent
was
found to
have improperly
disposed
of
waste
material,
and
thus,
creating
the
odor.
Paragraph
14
of
the Amended
Complaint
explains
that
on November
15,
2007, the
Illinois
Environmental
Protection
Agency
issued
Respondent
a notice
for
numerous
waste
dumping
violations;
these
violations
detail the
nature
and
extent
of the illegal
disposals,
which
led
to
the odor.
Likewise,
paragraph
17 of
the
Amended
Complaint
explains
other
events
that
contributed
to the odor.
The
Amended
Complaint
cures
the defects
of the
Amended
Complaint,
and as a
result,
the
Board
should
grant
Yorkville
leave to
file its
Amended
Complaint.
WHEREFORE,
the
United
City of
Yorkville
respectfully
requests
the
Board grant
United
City of
Yorkville’s
Motion
for Leave
to File Amended
Complaint,
and
grant such
other
relief as
the
Board
deems
just
and equitable.
Dated:
December
24. 2008
Thomas
G.
Gardiner
Nathan
P. Lusignan
Michelle
M.
LaGrotta
GARDINER
KOCH
WESIBERG
& WRONA
53
W.
Jackson
Blvd.,
Suite
950
Chicago,
IL
60604
312-362-0000
Atty
ID: 29637
Respectfully
submitted,
BEFORE THE
ILLINOIS
POLLUTION
CONTROL
BOARD
UNITED
CITY
OF
YORKVILLE,
)
ECEVED
A
MUNICIPAL
CORPORATION,
)
CLERK’S
OFFICE
Complainant,
))
DEC
2’2OO8
)
PCB
No.
08
9
STATE
OF
ILLiNOIS
)
(Enforcement-i!!
$gfl
)
HAMMAN
FARMS,
)
)
Respondents.
)
COMPLAINANT’S
MOTION
FOR
LEAVE
TO
FILE
A
REPLY
IN
SUPPORT
OF ITS
MOTION
FOR
LEAVE
TO FILE
AN AMENDED
COMPLAINT
NOW
COMES
the
Complainant,
UNITED
CITY
OF YORKVILLE,
by
and
through
its
attorneys,
GARDINER
KOCH
WEISBERG
&
WRONA,
pursuant
to 35
111.
Adm.
Code
101.500(e),
and
hereby
requests
leave
to
file
Reply
in
Support
of its
Motion
for
Leave
to
File
an
Amended
Complaint
in order
to
respond
to Respondent’s
Response
in
Opposition,
stating
as
follows:
1.
On
December
1,
2008,
Complainant
UNITED
CITY
OF
YORKVILLE
filed
a
Motion
for Leave
to File
Amended
Complaint
as
well
as
an Amended
Complaint
in
order
to sufficiently
plead
its position
on Count
III of
the Original
Complaint and
to
satisfy
415
ILCS
5/31(c)
and
(d)(2),
and
35
Ill.
Adm.
Code
103.204(c)(2).
2.
On
December
10,
2008,
Respondent
HAMMAN
FARMS
filed
a Response
in
Opposition
to Yorkville’s Motion
for
Leave
to
File
Amended
Complaint,
which
misrepresents
the Board’s findings
and rulings
in its
October
16,
2008
Opinion
and
Order.
3.
In
the
absence
of
an
opportunity
to
file
a
Reply
in
support
of its
Motion
for
Leave
to
File
Amended
Complaint,
United
City
of
Yorkville
will
be materially
prejudiced.
4.
Yorkville
has
prepared a
Reply,
which
addresses
the misrepresentations
of Hamman
Farms’
Response,
and
by
this
Motion
seeks
leave
to file
its
Reply
with
the Board
to
avoid
material prejudice.
A
copy
of
the
proposed
Reply
is
attached
hereto.
WHEREFORE,
Complainant
United
City
of
Yorkville
respectfully
requests
that the
Board
grant
leave
to
file
its
Reply
in
Support
of its
Motion
for
Leave
to
File
Amended
Complaint,
a copy
of
which
is
attached
hereto.
Dated:
December
24,
2008
Thomas
G.
Gardiner
Nathan
P.
Lusignan
GARDINER
KOCH
WEISBERG
&
WRONA
53
W.
Jackson
Blvd.,
Suite
950
Chicago,
IL
60604
312-362-0000
Atty
ID: 29637
Respectfully submitted,