4

HAMMAN’S MOTION TO DISMISS COUNTS I AND II

Hamman moves to dismiss as “duplicative” counts I and II of Yorkville’s complaint. In

count I (“Open Dumping Violations”), Yorkville alleges that Hamman violated Sections 21(a),

21(d)(1), 21(d)(2), 21(e), and 21(p)(1) of the Act (415 ILCS 5/21(a), 21(d)(1), 21(d)(2), 21(e),

21(p)(1) (2006)) by applying landscape waste mixed with litter and general refuse to its farm

fields and then allowing the litter and general refuse to remain. Comp. at 7-8. Yorkville

maintains that Hamman has allowed open dumping, conducted waste-storage and waste-disposal

operations without a permit and in violation of the Act, and allowed its farm to become a waste

disposal site.

Id

. Count II (“Landscape Waste Violations”) alleges that Hamman violated

Sections 21(a), 21(d)(1), 21(d)(2), 21(e), and 21(q) of the Act (415 ILCS 5/21(a), 21(d)(1),

21(d)(2), 21(e), 21(q) (2006)). Comp. at 12. Yorkville asserts that since Hamman began

applying landscape waste to its farm fields, Hamman has applied landscape waste at rates greater

than the agronomic rate of 20 tons per acre per year. According to count II, Hamman has

allowed open dumping, conducted waste-storage and waste-disposal operations without a permit

and in violation of the Act, allowed its farm to become a waste disposal site, and failed to obtain

a landscape waste composting operation permit or qualify for an exemption from permitting

under Section 21(q)(2) or (q)(3).

Id

.

In its pending motion to dismiss, Hamman argues that counts I and II of Yorkville’s

complaint are duplicative of a complaint filed against Hamman by the Illinois Attorney General

on behalf of the People of the State of Illinois in the Circuit Court of the Sixteenth Judicial

Circuit, Kendall County, Case No. 2008 CH 0811. Mot. Dism. at 1-2. The People’s complaint,

which was filed with the circuit court on September 17, 2008, became a part of the record before

the Board for the first time as an attachment to Hamman’s instant motion for dismissal.

According to Hamman, “[t]he same operative facts are pled and relied upon by Yorkville and by

the Attorney General” and “the very same statutory provisions are alleged to have been violated

in Yorkville’s Complaint and in the Attorney General’s Complaint.”

Id

. at 2. Hamman

maintains that Yorkville’s citizen enforcement action should “yield to the action brought by the

Attorney General concerning the same alleged violations.”

Id

. at 3.

Yorkville asserts that Hamman’s motion to dismiss is untimely under Section 101.506 of

the Board’s procedural rules (35 Ill. Adm. Code 101.506), having been filed more than 30 days

after Hamman was served with Yorkville’s complaint. Resp. Dism. at 2. Yorkville maintains

that the Board must therefore strike or deny Hamman’s motion to dismiss because the motion

was late.

Id

. at 3. As to the merits of Hamman’s motion, Yorkville concedes that “some of the

factual allegations” of the two complaints “are similar,” but argues that Yorkville’s complaint is

not duplicative of the People’s complaint:

Yorkville’s Complaint includes allegations that Hamman Farms violated the

Illinois Environmental Protection Act since approximately 1993. On the other

hand, the Attorney General’s Complaint contains allegations that Hamman Farms

violated the Act only since September 21, 2007. With Yorkville covering almost

fourteen additional years of alleged violations compared to the Attorney General’s

one year, the two complaints can not be considered substantially similar.

Id

. at 4-

5.

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5

Hamman replies that Yorkville relies upon “impossibility” by asserting that Hamman

should have argued about the People’s complaint “months before that complaint was even filed.”

Reply Dism. at 4. Hamman filed its current motion to dismiss within roughly three weeks of

receiving a copy of the Board’s October 16, 2008 decision ruling upon Hamman’s first motion to

dismiss.

Id

. As for Yorkville’s argument about its complaint alleging violations over a longer

period of time than does the People’s action, Hamman argues that the length of time during

which violations allegedly occurred “would go only to the remedy.”

Id

. at 6. Further, according

to Hamman, the “crucial inquiry” is whether the two complaints arise out of the same

occurrence, not whether the legal theory, issues, burden of proof, or relief sought materially

differ.

Id

., citing Combined Ins. Co. of America v. Certain Underwriters at Lloyd’s London, 356

Ill. App. 3d 749, 753, 826 N.E.2d 1089, 1094 (1st Dist. 2005) (interpreting meaning of “same

cause” within Section 2-619(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(3)).

The Board will not strike or deny Hamman’s motion to dismiss as untimely. Yorkville’s

complaint was filed with the Board on June 4, 2008, while the People’s complaint was filed with

the Kendall County Circuit Court approximately three and one-half months later, on September

17, 2008. Hamman correctly points out that the People’s complaint was filed

after

Hamman

timely filed its first motion to dismiss portions of Yorkville’s complaint and

before

the Board

ruled on that motion. Reply Dism. at 3. Under these circumstances, and to avoid any potential

material prejudice, the Board will consider Hamman’s pending motion to dismiss counts I and II

of Yorkville’s complaint based on the People’s circuit court complaint.

In ruling on a motion to dismiss, the Board takes all well-pled allegations as true and

draws all reasonable inferences from them in favor of the non-movant.

See

,

e.g.

, Beers v.

Calhoun, PCB 04-204, slip op. at 2 (July 22, 2004). “Unless the Board determines that [the]

complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1) (2006);

see also

35 Ill. Adm. Code 103.212(a). A complaint is “duplicative” if it is “identical or

substantially similar to one brought before the Board or another forum.” 35 Ill. Adm. Code

101.202.

For the reasons below, the Board finds that counts I and II of Yorkville’s complaint

before the Board are not duplicative of the People’s circuit court complaint. In deciding whether

a citizen complaint is duplicative of a court action, the Board has looked to whether the parties

before the Board are also before the court.

See

Lake County Forest Preserve District v. Neil

Ostro, Janet Ostro, and Big Foot Enterprises, PCB 92-80, slip op. at 2 (July 30, 1992). For

example, in Indian Creek Development v. Burlington Northern Santa Fe Railway Co., PCB 07-

44 (Mar. 15, 2007), the Board found that a citizen complaint filed with Board against a railway

company was not duplicative where, among other things, the citizen complainant was not a party

to the circuit court action brought by the People against the same railway company.

See

Indian

Creek Development, PCB 07-44, slip op. at 6. Here, the parties to the respective proceedings

differ. Yorkville is not a party to the circuit court action.

The Board has also considered whether the two “complaints are based on different

theories (

e.g.

, nuisance vs. violation of the Act).” Robert Smith v. Heritage Tool & Die

Manufacturing, Inc., PCB 99-145, slip op. at 2 (June 3, 1999);

see also

Ostro, PCB 92-80, slip

---

6

op. at 2 (federal court action “based on statutes and legal theories other than the Act”). In the

instant case, it is not disputed that alleged violations of the Act are at issue in both complaints or

that the provisions of the Act ultimately alleged to have been violated are the same. However,

Yorkville alleges that Hamman’s application of landscape waste at greater than 20 tons per acre

per year violated not only Section 21(q) of the Act, as the People allege, but also Sections 21(a),

(d)(1), (d)(2), (e), and (p)(1) of the Act.

See

Indian Creek Development, PCB 07-44, slip op. at 6

(fact that the citizen complaint before the Board alleged a violation of an additional provision of

the Act militated toward finding the complaint not duplicative of circuit court action). Further,

even where both complaints allege violations of Sections 21(d)(1) and (d)(2) for waste disposal

without a permit, Yorkville alleges that Hamman also violated the provisions by conducting

waste storage without a permit, which the People do not claim.

Additionally, when determining whether a citizen complaint is duplicative of a complaint

filed in court, the Board has taken into account whether the two actions involved the “same time

frame.” Ostro, PCB 92-80, slip op. at 2;

see also

Dorothy L. Hoffman v. City of Columbia, PCB

94-146, slip op. at 3 (June 2, 1994) (citizen complaint alleging noise pollution occurred in 1993

and 1994 is not duplicative of circuit court complaint alleging noise pollution occurred in 1991

and 1992). While there is some temporal overlap here, the dates and time periods of alleged

violations are not the same under the respective complaints of Yorkville and the People. For

example, regarding claimed violations resulting from Hamman allegedly applying landscape

waste at greater than the statutorily-designated agronomic rate, Yorkville specifically pleads a

longer period of violations, ranging back to 1993. The People’s allegations identify two dates of

violation in the fall of 2007. With differing timeframes of alleged violations, the underlying

facts at issue in the two actions would vary accordingly.

Finally, in deciding whether a citizen complaint is duplicative, the Board has looked to

whether the relief requested in Board and court proceedings differed.

See

Heritage Tool & Die

,

PCB 99-145, slip op. at 2-3. Both Yorkville and the People seek the imposition of civil penalties

under the Act. However, the additional violations alleged and the longer period of alleged

violations affects the relief requested, as both the People and Yorkville seek civil penalties of

$50,000 for each violation and $10,000 for each day of violation.

See

415 ILCS 5/42(a) (2006).

The total amount of civil penalties requested in the two proceedings therefore necessarily differs.

Considering all of the factors articulated above, the Board finds that Yorkville’s counts I

and II are not identical or substantially similar to the complaint brought by the People in circuit

court. The Board accordingly denies Hamman’s motion to dismiss counts I and II of Yorkville’s

complaint as duplicative.

YORKVILLE’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

As discussed above, the Board dismissed count III of the complaint (“Air Pollution

Violations”) on October 16, 2008. In granting Hamman’s motion to dismiss count III, however,

the Board did so without prejudice, as the Board could not conclude that there was clearly no set

of facts that could be proven that would entitle Yorkville to prevail on the air pollution claim.

With its pending motion for leave to file an amended complaint, Yorkville seeks to remedy the

pleading deficiency of count III. Mot. Am. Comp. at 2.

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7

The Board’s October 16, 2008 opinion discussed count III’s shortcomings:

The Board finds that 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 Ill. 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).

A complainant alleging unreasonable interference is not required to plead

facts on each of the Section 33(c) factors, nor set out all of its evidence.

See

Kankakee Federation of Teachers, 46 Ill. 2d at 446-47 (1970) (“only the ultimate

facts to be proved should be alleged and not the evidentiary facts tending to prove

such ultimate facts”); Grist Mill Confections, PCB 97-174, slip op. at 5

(“complainant is not required to present facts in the complaint concerning Section

33(c) of the Act in order to file a sufficient pleading but instead may present facts

at hearing.”). However, 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, including the requirement to advise Hamman so as to reasonably

allow Hamman to prepare a defense.

See

Lloyd A. Fry Roofing, 20 Ill. App. 3d at

305, 314 N.E.2d at 354; Grist Mill Confections, PCB 97-174, slip op. at 4; 415

ILCS 5/31(c), (d)(1) (2006); 35 Ill. Adm. Code 103.204(c). Construing the

complaint, however liberally, cannot generate those missing facts.

See

Condell

Memorial Hospital, 119 Ill. 2d at 510, 520 N.E.2d at 43.

Yorkville’s amended complaint would add the following paragraph of allegations, which

Yorkville maintains “cures the defects in the Original Complaint by providing facts describing

the effect of the odor on the residents of Yorkville” (Reply Am. Comp. at 1):

Specifically, the odor caused by Hamman Farms 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 of the 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;

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 (Am.

Comp. at 14, ¶59).

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8

Hamman opposes Yorkville’s motion for leave to file an amended complaint. Hamman

argues that Yorkville’s amended count III fails to address all of the deficiencies identified by the

Board. Resp. Am. Comp. at 3-4. According to Hamman:

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.

Id

. at 4.

The Board finds that Yorkville’s proposed amendment to the complaint pleads the nature

of the alleged interferences with residents, correcting one of the deficiencies found by the Board

on October 16, 2008. However, Yorkville still identifies neither the residents allegedly

interfered with nor the locations at which the interferences allegedly took place. Accordingly,

the Board finds that Yorkville has not pled the extent of the consequences of the alleged

emissions so as to reasonably allow Hamman to prepare a defense.

See

35 Ill. Adm. Code

103.204(c)(2). Likewise, Yorkville’s amendatory language still includes no allegations on the

dates or frequency and duration of the alleged disruptions over the 15-year span.

Id

. Absent this

information, Yorkville’s amendment would not cure all of the deficiencies identified in the

Board’s October 16, 2008 order.

See

35 Ill. Adm. Code 103.206(e)(2). The Board therefore

denies Yorkville’s motion for leave to file the amended complaint.

See

Clemons v. Mechanical

Devices Co., 202 Ill. 2d 344, 355-56, 781 N.E.2d 1072, 1080 (2002) (one factor to consider in

deciding whether to grant leave to amend a pleading is whether the proposed amendment would

cure a defect in the pleading).

The Board has already accepted for hearing Yorkville’s original complaint, as modified

by the Board’s October 16, 2008 order. Hamman Farms, PCB 08-96, slip op. at 26 (Oct. 16,

2008). In the interest of moving this case forward expeditiously, the Board grants Yorkville

leave to file an amended complaint to remedy, pursuant to today’s order, the air pollution count.

Any such amended complaint must be filed no later than May 4, 2009. If an amended complaint

is timely filed, the Board will issue an order determining whether to also accept for hearing the

modified air pollution count.

Under the Board’s procedural rules, a respondent’s failure to file an answer to a

complaint within 60 days after receiving the complaint may have severe consequences.

Generally, if a respondent fails within that timeframe to file an answer specifically denying, or

asserting insufficient knowledge to form a belief of, a material allegation in the complaint, the

Board will consider the respondent to have admitted the allegation.

See

35 Ill. Adm. Code

103.204(d). Hamman’s two motions to dismiss have stayed the 60-day periods for filing an

answer.

See

35 Ill. Adm. Code 103.204(e); Hamman Farms, PCB 08-96, slip op. at 28 (Oct. 16,

2008). For administrative economy, the Board now makes any answer from Hamman (whether

to Yorkville’s complaint as modified by the October 16, 2008 order, or to any amended

complaint permitted by today’s order) due by July 6, 2008.

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9

CONCLUSION

The Board denies Hamman’s motion to reconsider the Board’s October 16, 2008 decision

denying Hamman’s motion to dismiss count IV (“Water Pollution Violations”) of Yorkville’s

complaint. The Board also denies Hamman’s motion to dismiss as “duplicative” count I (“Open

Dumping Violations”) and count II (“Landscape Waste violations”) of Yorkville’s complaint.

Additionally, the Board denies Yorkville’s motion for leave to file an amended complaint

because Yorkville’s modified pleading fails to remedy all of the deficiencies in dismissed count

III (“Air Pollution Violations”) of the original complaint. The Board grants Yorkville leave to

file an amended complaint by May 4, 2009, that cures the air pollution count deficiencies

identified in today’s order. Any answer from Hamman is due by July 6, 2009.

IT IS SO ORDERED.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above order on April 2, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board