RECEVED
CLERK’S
OFFICE
BEFORE THE ILLINOIS
POLLUTION
CONTROL BOARD
UNITED CITY OF
YORKVILLE, A
)
MUNICIPAL
CORPORATION,
)
Pt
Control
Board
Petftioner,
)
)
PCB No. 08-96
v.
)
Enforcement-Land,
Air, Water
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY, and
)
HAMMAN
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 AMENDED COMPLAINT,
copies of
which are
herewith served upon you.
Respectfully
submitted,
UNITED CITY OF YORKVILLE,
Petitioner,
By
rk
One
of
its
Attorneys
Dated: May 7,
2009
Thomas G.
Gardiner
Michelle
M.
LaGrotta
GARDINER
KOCH &
WEISBERG
53 W
Jackson
Blvd., Ste. 950
Chicago,
IL
60604
(312) 362-0000
Att ID:
29637
THIS
FILING
IS SUBMITTED ON RECYCLED
PAPER
CERTIFICATE
OF
SERVICE
I,
Michelle
M.
LaGrotta,
the
undersigned
certify
that
on May
7,
2009,
I
have
served
the
attached
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, Illinois
60601-3218
(via
hand
delivcry)
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R.
Thompson Center,
Ste.
11-500
100 W
Randolph Street
Chicago,
IL
60601
(via
hand
delivery)
Charles
F.
Heisten
Nicola
A.
Nelson
Hinshaw
&
Culbertson
100
Park
Avenue
P.O.
Box
1389
Rockford,
IL
61105-1389
(via
email
to:
NNelson@hinshawlaw.com
and
CHelstenhinshawIaw.com,
and
U.S.
Mail)
,U
Michelle
1iZ
M.
LaGrotta
RECEVED
BEFORE THE
ILLINOIS
POLLUTION CONTROL
BOARD
CLEpc’
OFFICE
UNITED CITY OF YORK
VILLE, A
)
MAY
072009
MUNICIPAL
CORPORATION,
)
STATE
OF
ILLINOIS
Complainant,
)
Pollution
Control
Board
)
PCB No. 08-96
v.
)
)
(Enforcement-Land,
Air,
Water)
HAMMAN FARMS,
)
Respondents.
)
AMENDED COMPLAINT
NOW
COMES the
Complainant, UNITED
CITY OF YORK
VII.T
F,
by
its
attorneys,
GARDINER KOCH
& WEISBERG, pursuant to Section 31(d) of the Illinois Environmental
Protection
Act (415
ILCS 5/31(d)), and 35 Iii.
Admin.
Code
§
103.200,
and for
its Amended
Complaint against
HAMMAN FARMS, states
as follows:
GENERAL ALLEGATIONS
1.
Complainant, UNITED
CITY
OF
YORKVILLE,
(hereinafter referred to as
“Yorkville”) is an
Illinois municipal
corporation
in Kendall County, Illinois.
2.
At
all times relevant, HAMMAN FARMS (hereinafter
referred
to
as
“HAMMAN”) is a
farm, located on
approximately twenty-two
hundred
acres of land in
Kendall
County.
3.
On
this land,
HAMMAN grows crops
of soybeans, wheat and
corn.
4.
Starting in
or around 1993, HAMMAN
registered with the Illinois Environmental
Protection
Agency
(“Agency”)
as
an On-Site
Compost Landscape Waste
Compost
Facility
(hereinafter
referred
to as “Compost Facility”) pursuant to
section 21(q)(3) of the
Illinois
Environmental
Protection
Act (hereinafter
referred
to as “Act”).
I
5.
As part of
HAMMAN’S
farming
operations,
HAMMAN
receives
landscape
waste
from
offsite. HAMMAN
grinds the landscape
waste
in
a tub
grinder. HAMMAN
then
applies
the landscape
waste
to
farm fields.
6.
Sometime in or
around 1992 to
1993, HAMMAN
applied
to the Agency
for
permission to
apply
landscape
waste
at rates greater than
the
agronomic
rate of twenty
(20)
tons
per acre
per
year.
The Agency denied
Hamman’s request.
7.
Since
registering with the
Agency
as
a Compost
Facility, HAMMAN
has
completed
and
filed
annual
reports
as required under
35 Illinois
Administrative
Code
§830.1
06(b)(2).
8.
HAMMAN certified
that it received
landscape
waste in the
amounts of 157,391
cubic yards,
174,630 cubic
yards,
266,441
cubic
yards, 192,532
cubic yards,
and 222,239 cubic
yards for the
years 2002, 2003,
2004, 2005,
and
2006, respectively.
9.
Application
of landscape
waste
at agronomic
rates
results in application
measurements
of
three quarter of an
inch. Application
measurements
of greater
than
three
quarters
of an
inch signify that
landscape waste
is
being applied
at rates
greater than
the
agronomic
rate.
10.
Since
registering
as a
Compost Facility,
HAMMAN
has applied
landscape
waste
at rates
resulting in application
measurements greater
than three
quarters of
one inch.
11.
On
several
occasions
since registering
as a
Compost Facility,
Agency inspectors
have
found
litter mixed
with
the
landscape waste in
HAMMAN’s
fields.
12.
Since HAMMAN
began the application
of landscape
waste
to its
fields,
the
Agency
has
received
complaints of strong
and offensive
odors around
HAMMAN.
2
13.
On
October
17,
2007, Agency
inspectors, Gino Bruni and Mark Retzlaff,
conducted an inspection of
HAMMAN.
During
the inspection, the inspectors
observed
the
following:
a.
The application rate was
two
and
one half inches to three inches
thick
using a
ruler;
b.
Numerous flies were at the field where landscape waste
had been applied; and
c.
General refuse
was
in the landscape waste.
14.
On November 15, 2007,
the Agency issued
HAMMAN
a violation notice. The
notice
cited the
following violations:
a.
Section 21(a) of the Act: HAMMAN openly dumped landscape waste and
general
refuse. HAMMAN did not apply landscape waste
at
agronomic rates.
b.
Section 21(d) of
the Act: HAMMAN openly dumped
landscape
waste and
general refuse. HAMMAN
did not apply landscape waste
at
agronomic rates.
HAMMAN conducted the aforementioned activities without a permit issued
by the
Agency.
c.
Section 21(p) of the Act: HAMMAN openly dumped litter,
and
litter was
commingled
with
the landscape waste.
d. 35
Ill. Admin. Code
§807.201:
HAMMAN openly dumped landscape
waste
and general refuse.
HAMMAN
did not apply landscape waste at agronomic
rates.
HAMMAN conducted the aforementioned
activities
without
a
developmental permit granted by the Agency.
e.
35111. Admin. Code §807.202: HAMMAN openly
dumped
landscape waste
and
general refuse. HAMMAN did not apply landscape
waste at
agronomic
3
rates.
HAMMAN
conducted
the
aforementioned
activities
without
a
developmental permit
granted
by
the
Agency.
15.
The
violation
notice
specified
“suggested
resolutions.”
These
included
the
following:
a.
Immediately
cease
all
open
dumping;
b.
Immediately remove
all litter/general
refuse
from
incoming
loads
of
landscape
waste
prior
to placing
into
the
tub
grinder.
A
second
screening
of
the
landscape
waste
must be
conducted
prior
to
being
applied
to
the farm
fields.
If
necessary,
a
third
screening
must
be
conducted
prior
to
the landscape
waste
being
tilled into
the field;
c.
Immediately
apply
landscape
waste at
agronomic
rates
(three
quarters
of
one
inch
in
thickness).
Daily
written
agronomic
rate
calculations
must
be
maintained
for
three
years;
and
d.
Immediately calculate,
on a
daily
basis,
the
percentage
of non-landscape
waste.
These
calculations
must
be maintained
for
three
years.
16.
Following
the
violation
notice,
a
violation
notice
meeting
was
held
at the
Agency’s
Des
Plaines
office.
At the meeting,
DONALD
J.
HAMMAN
admitted
that
HAMMAN
was
applying
landscape
waste
at
a
rate
greater
than
twenty
(20) tons
per acre
per
year.
17.
On
March
5,
2008,
the Agency
rejected
HAMMAN’s
Compliance
Commitment
Agreement
on the
following
bases:
a.
HAMMAN
failed
to agree
to
apply
landscape
waste
at
agronomic
rates
(twenty
(20)
tons
per
acre per
year);
and
4
b. HAMMAN
failed
to calculate
on a daily basis
the
percentage
of non-
landscape
waste.
18.
On April 10, 2008,
HAMMAN
filed a request for
permission to
apply landscape
waste
at
rates
greater
than the agronomic
rate
of twenty (20)
tons per acre
per year. HAMMAN
included
with
its application
the following
documents:
(1)
Land Application
Plan;
(2)
USDA
Soil
Conservation Service
Soil Survey;
(3)
Chemical
Analysis
of
Soil/Compost;
(4)
Calculations
regarding
Nitrogen
Demand
and
Expected
Nitrogen
and
Potassium
Loading;
and
(5)
Opinion of
Dr.
Razvi.
19.
The
Chemical
Analysis
of Soil/Compost included
four
(4)
soil samples
and one
(1) sample of
leaves with
mixed
forage.
Midwest Laboratories,
who
performed
the tests,
received
the four soil
samples conducted
the analyses
on December
7, 2007.
Midwest
Laboratories’
report did
not identify the location
from where
the samples
were taken.
Midwest
Laboratories,
Inc.
received
the
sample of leaves
with
mixed
forage
on December
5,
2007.
20.
The Illinois
Agronomy Handbook
recommends
using
a sampling
of one
composite from
each
two
and one
half
(2
‘/2)
acre areas when
conducting
soil
test
analysis. Mr.
Gary
Cima, an
expert in landscape
waste
application
and
former
Agency investigator,
recommends
using
a sampling
of
two
tests from each
one
acre
area.
21.
On April 16, 2008, HAMMAN
filed
a
supplemental
application.
22.
On May 1,
2008,
the Agency approved
HAMMAN’s
request
to
raise
the
agronomic rate.
COUNT I
OPEN
DUMPING
VIOLATIONS
23.
Section 21
of
the
Act,
415
ILCS
5/21(2008),
provides
in
pertinent
part
as
follows:
“No
person shall:
5
(a)
Cause
or
allow
the
open
dumping
of any
waste...
(d)
Conduct
any
waste-storage,
waste
treatment,
or
waste-
disposal
operation:
(1)
without
a permit
granted
by
the
Agency
or
in
violation
of
any
conditions
imposed
by
such
permit...
(2)
in
violation
of
any
rcgulations
or
standards
adopted
by
the
Board
under
this
Act;...
(e)
Dispose,
treat,
store,
or
abandon
any
waste,
or
transport
any
waste
to
this
State
for
disposal,
treatment
storage
or
abandonment,
except
at
a site
or facility
which
meets
the
requirements
of
this
Act
and
of
regulations
and
standards
thereunder.
(p)
In
violation
of
subdivision
(a)
of this Section,
cause
or
allow
the
open dumping
of
any
waste
in
a
manner
which
results in
any
of
the
following
occurrences
at
the
dump
site:
(1)
litter;...”
24.
Section 3.185
of
the
Act,
415
ILCS
5/3.185
(2008),
provides:
“Disposal’
means
the
discharge,
deposit, injection,
dumping,
spilling, leaking
or
placing of
any
waste
or
hazardous
waste
into
or
on
any
land
or
water
or
into
any
well
so
that
such
waste
or
hazardous
waste
or
any constituent
thereof
may
enter
the
environment
or
be
emitted into
the
air
or
discharged
into
any
waters,
including
ground
waters.”
25.
Section 3.230
of
the
Act,
415
ILCS
5/3.230
(2008),
provides
in
pertinent
part:
“Household
waste’
means
any
solid
waste
(including
garbage,
trash,
and
sanitary
waste
in
septic
tanks)
derived
from
households...
‘—‘
26.
Section 3.270
of
the
Act,
415
ILCS
5/3.270
(2008),
provides:
“Landscape
waste”
means all
accumulations
of
grass
or
shrubbery
cuttings, leaves,
tree
limbs
and
other
materials
accumulated
as
the
result
of
the
care
of
lawns, shrubbery,
vines
and
trees.”
6
27.
Section
3.305
of
the
Act,
415
ILCS
5/3.305
(2008),
provides:
“Open
dumping’
means
the
consolidation
of
refuse
from
one
or
more
sources
at a
disposal
site
that
does
not
fulfill
the
requirements
of
a sanitary
landfill.”
28.
Section
3.385
of the
Act,
415
ILCS
5/3.385
(2008),
provides:
“Refuse’
means
waste.”
29.
Section
3.445
of
the
Act.
415
ILCS
5/3.445
(2008),
provides:
“Sanitary
landfill’
means
a
facility
permitted
by
the
Agency
for
the
disposal
of waste
on
land
meeting
the
requirements
of
the
Resource Conservation
and
Recovery
Act,
P.L.
94-580,
and
regulations
thereunder,
and
without
creating
nuisances
or
hazards
to public
health
or
safety,
by
confining
the
refuse
to
the
smallest
practical
volume
and
covering
it
with
a
layer
of
earth
at the
conclusion
of
each
day’s
operation,
or
by
such
other
methods
and
intervals
as
the
Board
may
provide
by regulation.”
30.
Section
3.470
of
the
Act,
415
ILCS
5/3.470
(2008),
provides:
“Solid
waste’
means
waste.”
31.
Section
3.480
of
the
Act,
415
ILCS
5/3.480
(2008),
provides:
“Storage’
means
the
containment
of waste,
either
on
a temporary
basis
or
for
a
period
of
years,
in
such
a manner
as
not
to
constitute
disposal.”
32.
Section
3.535
of
the
Act,
415
ILCS
5/3.535
(2008),
provides
in
pertinent
part:
“Waste’ means
any
garbage..
.or
other
discarded
material,
including
solid,
liquid,
semi-solid
or contained
gaseous
material
resulting from
industrial,
commercial,
mining
and
agricultural
operations,
and from
community
activities..
33.
Section
3.540
of
the
Act,
415
ILCS
5/3.540
(2008),
provides:
“Waste
disposal
site’
is
a site
on
which
solid
waste
is
disposed.”
34.
On
October
23,
2007
the
Agency
inspected
HAMMAN
and
found
refuse
mixed
in
with
the
landscape waste.
7
35.
Garbage
and
refuse
mixed
with
the
landscape
waste
constitutes
waste
under
section 3.535
of
the
Act.
415 ILCS
5/535.
36.
On
several
occasions
since
HAMMAN
began
applying
landscape
waste,
garbage
has been
mixed with
the landscape
waste
on
HAMMAN
fields.
37.
In
allowing
the garbage
to be
disposed
of
and
remain on
HAMMAN
fields,
HAMMAN
allowed ‘open
dumping”
for purposes
of 415
ILCS 5/21(a).
38
Tn
allowing
the
garbage
to
he
disposed
of and
remain
on HAMMAN
fields.
HAMMAN
conducted
waste-storage
and
waste-disposal
operations,
for
purposes
of
415
ILCS
5/21(d)(1)
and
(2),without
a
permit
and in
violation
of the
Act
and regulations.
39.
In
allowing
the
garbage
to
be
disposed
of and
remain
on HAMMAN
fields,
1-IAMMAN
became
a
waste disposal
site for
purposes
of 415
ILCS 5/21(e).
At the time
that
HAMMAN
allowed
garbage
to
remain
on
HAMMAN
fields,
HAMMAN
was
not permitted
for
the
disposal of
waste,
and
thus
does not
meet
the
requirements
of
the Act or
the regulations
for
purposes
of 415
ILCS
5/21(e).
40.
In
allowing
the
garbage
to
be
disposed
of and
remain
on
HAMMAN
fields,
HAMMAN
allowed
“open
dumping”
of litter
for
purposes
of 415
ILCS 5/21
(p)(I).
41.
HAMMAN’s
failure
to remove
the
waste
is harmful
to
the
environment
and
to the
health
and
welfare of
the
people
living
and working
near
HAMMAN.
42.
Because
of
the aforementioned
reasons,
HAMMAN
has
violated
sections
21(a),
21(d)(I)
and
(2), 21(e),
and
21(p)(l)
of the Act.
PRAYER
FOR RELIEF
WHEREFORE,
Complainant,
UNITED
CITY
OF
YORKVILLE,
respectfully
requests
that the
Board
enter
an order
against the
Respondent:
8
A.
Authorizing
a hearing
in this
matter
at which
time
the
Respondent
will
be
required
to answer
the
allegations
herein;
B.
Finding
that
the
Respondent
has
violated
the
Act
and
regulations
as
alleged
herein;
C.
Ordering
the
Respondent
to
cease
and
desist
from
any
further
violations
of
the
Act
and
associated
regulations;
F)
Ordering
the
Respondent
to
pay
a
civil
penalty
of
$50,000
for
each
such
violation,
pursuant
to
Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
E.
Ordering
the
Respondent
to
pay
an
additional
civil
penalty
of
$10,000
for
each
day
during
which
each
such
violation
continued,
pursuant
to
Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a); and
F.
Granting
such
other
relief
as
the
Board
may
deem
appropriate.
COUNT
II
LANDSCAPE
WASTE
VIOLATIONS
43.
Section
21
of
the
Act,
415
ILCS
5/21(2008),
provides
in
pertinent
part
as follows:
“No
person
shall:...
(q)
Conduct
a
landscape
waste
composting
operation
without
an
Agency
permit,
provided,
however,
that
no
permit
shall
be
required
for
any
person:...
(2) applying
landscape
waste
or
composted
landscape
waste
at agronomic
rates;
or
(3)
operating
a
landscape
waste
composting
facility
on
a
farm,
if
the
facility
meets
all
of
the
following
criteria:
(A)
the
composting
facility
is
operated
by
the
farmer
on
property
on
which
the
9
composting
material
is utilized,
and
the
composting
facility
constitutes
no more
than
2%
of the
property’s
total
acreage...
(C) all
compost
generated
by the
composting
facility
is
applied
at
agronomic
rates
and
used
as mulch,
fertilizer
or
soil conditioner
on
land
actually
farmed...
(D)
the
owner
or operator,
by..
January
1
of
each
year thereafter,
(i) registers
the
site
with
the
Agency,
(ii)
reports
to
the Agency
on
the
volume
of
composting
material
received
and
used at
the site,
(iii)
certifies
to
the
Agency
that
the
site complies
with
the
requirements
set forth
in subparagraphs
(A),
(B)
and (C)
of this
paragraph
(q)(3),
and (iv)
certifies
to
the
Agency
that all
composting
material
was
placed
more
than 200
feet
from
the nearest
potable
water
supply
well,
was
placed
outside
the
boundary
of
the
10-year
floodplain
or
on
a part
of
the
site
that
is
floodproofed,
was
placed
at
least
1/4 mile
from
the nearest
residence
(other
than
a
residence
located
on
the same
property
as
the
facility)
and
there
are
not
more
than
10
occupied
non-farm
residences
within
1/2
mile
of
the
boundaries
of the
site on
the date
of application,
and was
placed
more
than
5
feet above
the
water
table.
For
the
purposes
of
this subsection
(q),
‘agronomic
rates’
means
the
application
of not
more
than 20
tons
per acre
per
year,
except
that the
Agency
may
allow
a higher
rate
for
individual sites
where
the owner
or operator
has
demonstrated
to
the Agency
that
the
site’s
soil
characteristics or crop
needs
require
a
higher
rate.”
44.
Section
3.270
of
the
Act, 415
ILCS
5/3.270
(2008),
provides:
“‘Landscape waste’
means
all
accumulations
of
grass or
shrubbery
cuttings,
leaves,
tree
limbs
and
other
materials
accumulated
as
the
result
of the
care
of
lawns,
shrubbery,
vines
and trees.”
10
45.
Section
830.102
of
the
Illinois
Administrative
Code
Title 35,
ILL.
ADMIN.
CODE
TIT.
35, §830.102,
provides
in pertinent
part:
“Except
as
stated
in
this
Section,
the
definition
of each
word
or
term
used
in this
Part,
35
Iii.
Adm.
Code
831
and 35
Ill.
Adm.
Code 832
shall
be
the
same
as that
applied
to the
same
word
or
term
in the
Environmental
Protection
Act...
‘Agronomic
Rates’
means
the application
of
not
more
than
20 tons
per
acre
per
year,
except
that the
Agency
may
allow
a higher
rate
for
individual
sites
where
the owner
or
operator
has
demonstrated
to the
Agency
that
the site’s
soil
characteristics
or
crop
needs
require
a higher
rate.
(Section
2 1(q)
of the Act.)...
‘Compost’
means
the
humus-like
product
of the
process
of
composting
waste,
which
may
be used
as
a soil
conditioner.
(Section
3.70
of
the Act.)
‘Composting’
means
the
biological
treatment
process
by
which
microorganisms
decompose
the organic
fraction
of
the
waste,
producing
compost.
(Section
3.70
of
the
Act.)
Land
application is
not
composting....
‘Land
application’
means
the
spreading
of
waste,
at an
agronomic
rate,
as
a soil
amendment
to
improve
soil
structure
and crop
productivity....
‘Landscape
waste
compost
facility’
means
an
entire
landscape
waste
composting
operation,
with
the xception
of
a garden
compost
operation.
‘On-farm
landscape waste
compost
facility’
means
a
landscape
compost
facility
which
satisfies
all
of
the
criteria
set forth
in Section
830.106.”
46.
Section
832.109
of
the Illinois
Administrative
Code
Title
35,
ILL. ADMIN.
CODE
TIT.
35,
§832.109,
provides:
“The
issuance
and
possession
of
a
permit
shall
not
constitute
a
defense
to
a
violation
of the
Act
or
any
Board
regulations,
except
for
the development and
operation
of
a facility
without
a
permit.”
11
47.
Landscape
waste
constitutes waste
under
section
3.535
of
the
Act.
415
ILCS
5/53
5.
48.
Since
HAMMAN
began
applying
landscape
waste,
HAMMAN
has
applied
landscape
waste
at
rates
greater
than
the
agronomic
rate
of twenty
(20)
tons
per
acre
per
year.
49.
In
applying landscape
waste
at rates
greater
than
the
agronomic
rate
of
twenty
(20)
tons
per
acre
per
year,
HAMMAN allowed
“open
dumping”
for
purposes
of
415
ILCS
5/21
(a).
50.
In
applying
landscape
waste
at
rates
greater
than
the
agronomic
rate
of
twenty
(20)
tons
per
acre
per
year,
HAMMAN
conducted
waste-storage
and
waste-disposal
operations,
for
purposes
of
415
ILCS
5/21
(d)(
1)
and
(2),without
a permit
and
in
violation
of
the
Act
and
regulations.
51.
In
applying
landscape
waste
at rates
greater
than
the
agronomic
rate
of twenty
(20)
tons
per
acre
per
year,
HAMMAN became
a
waste
disposal
site
for
purposes
of
415
ILCS
5/21(e). HAMMAN
was
not
permitted
for
the
disposal
of waste,
and
thus
does
not
meet
the
requirements
of
the Act
or
the regulations
for
purposes
of
415
ILCS
5/21(e).
52.
In
applying
landscape waste
at
rates
greater
than
the
agronomic
rate
of twenty
(20)
tons
per
acre
per
year,
HAMMAN
does
not
meet
the
permit
exemptions
found
in
sections
21
(q)(2)
and
(3)
of
the
Act.
In applying landscape
waste
at
rates
greater
than
the
agronomic
rate
of
twenty
(20)
tons
per
acre
per
year,
without
a permit,
HAMMAN
violated
section
21(q)
of
the
act.
53.
Because
of
the
aforementioned
reasons,
HAMMAN
has
violated
sections 21(a),
21(d)(1) and
(2),
21(e), and
21(q).
PRAYER
FOR
RELIEF
12
WHEREFORE,
Complainant,
UNITED
CITY
OF
YORKVILLE,
respectfully
requests
that
the
Board
enter
an
order
against
the
Respondent,
A.
Authorizing
a
hearing in
this
matter
at
which
time
the
Respondent
will
be
required
to
answer
the
allegations
herein;
B.
Finding
that
the
Respondent
has
violated
the
Act
and
regulations
as
alleged
herein;
C
Ordering
the
Respondent
to
cease
and
desist
from
any
further violations
of
the
Act
and
associated
regulations;
D.
Ordering
the
Respondent
to
pay
a civil
penalty
of
$50,000 for
each
such
violation,
pursuant
to
Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
E.
Ordering
the
Respondent
to
pay
an
additional
civil
penalty
of
$10,000 for
each
day
during
which
each
such
violation
continued,
pursuant
to
Section
42(a)
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
and
F.
Granting
such
other
relief
as the
Board
may
deem
appropriate.
COUNT
III
AIR
POLLUTION
VIOLATIONS
54.
Section
9
of
the
Act,
415 ILCS
5/9
(2008)
provides
in
pertinent
part:
“No
person
shall:
(a)
Cause
or
threaten
or
allow
the
discharge
or
emission
of
any
contaminant
into
the
environment
in
any
State
so
as
to
cause
or
tend
to cause
air
pollution
in
Illinois,
either
alone
or
in
combination
with
contaminants
from
other sources,
or
so
as
to
violate
regulations
or
standards
adopted
by
the
Board
under
this
Act.
..“
55.
Section
3.115
of
the
Act,
415
ILCS
5/3.115(2008),
provides
13
“‘Air pollution’ is
the presence
in
the
atmosphere
of one or more
contaminants in
sufficient quantities
and of
such characteristics
and
duration as to be
injurious
to
human,
plant, or
animal life,
to health,
or
to
property, or to unreasonably
interfere
with
the enjoyment
of
life
or
property.”
56.
Section 3.165 of the Act,
415 ILCS
5/3.165
(2008),
provides:
Contaminant’ is any solid, liquid,
or gaseous
matter,
any
odor, or
any form of
energy,
from
whatever
source.”
57.
Under
Section 3.165 of the Act, the
odor that is
emitted from
HAMMAN’ s
application of landscape
waste is a
contaminant.
58.
Under
Section
3.115 of the Act, the release
of the odor,
a contaminant, is air
pollution that
unreasonably
interferes with the
enjoyment
of life
or property.
This
odor
unreasonably
interferes
with
Yorkville’s residents’
use and
enjoyment of life
and property.
59.
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 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
childrenTrom
playing
outdoors; and
f. It
occasionally causes nausea in the
people who smell
the odor.
60.
Joann
Gilbert, who resides at
8730 East
Highpoint
Road, Yorkville,
Illinois,
first
noticed
the
odor caused by
Hamman Farms
during
the summer
of 1994.
Ms. Gilbert found the
14
odor so offensive
that she
called emergency
services because
she thought the odor
resulted
from
an accident.
Although
police
officers came out
to
investigate
the odor,
Ms. Gilbert did
not
learn
the source of
the smell until
several weeks later.
a.
From 1994 until
2006, Ms. Gilbert
noticed the odor
a several
times per
month
from
May
until
October.
b. As a
result of the
odor, Ms. Gilbert
began to
use
air
conditioning
instead of
leaving the
windows of
her home
open.
c.
In May 2008, Ms.
Gilbert noted
the odor on at least
three occasions.
Ms.
Gilbert
noted
the odor again on at
least four
occasions
in June 2008
(on or
about, June
18th, 19th,
20th,
and
30th) and once
in July
2008 (on
or
about,
July 3
1st).
d.
On those
occasions,
Ms.
Gilbert
informed the Illinois
Environmental
Protection
Agency.
61.
Diane
Pobol,
a
former Yorkville resident,
resided on property
surrounded
by
Hamman Farms
from early
2006
until
fall
of 2008.
a. Ms.
Pobol
noticed
the
odor for the first time
in spring 2006. When
Ms.
Pobol
first
noticed
the
odor,
she
thought that there
was
a problem with
the septic
tank on
her property.
Ms. Pobol later learned
that that the odor
came from
Hamman
Farms.
b.
Ms. Pobol’s
home
did
not
have
air
conditioning,
and she
was forced
to
leave
windows open
despite
the
smell. As a result
of the odor, Ms. Pobol’s
eyes
were
often
irritated
and
continually
teared.
15
c.
Prior
to moving into
her
home,
Ms.
Pobol
had
entered
negotiations
to
rent
one
of the
barns
on
the
property. The
rental
money
was
intended
to
help
subsidize
the
mortgage
payments.
Following
the
potential
renters’
visit
to the
property
in
May
2006,
the
potential
renters
refused
to enter
the
lease
due
to
the odor
emanating from
Hamman
Farms.
Ms.
Pobol
was
never
able
to find
a
renter
for
the
barn.
d. Ms.
Pobol
tried
to
sell
the
property
in
2006.
The
odor,
along
with
the
garbage
and
flies
lying
in
and
around
the
fields
of
Hamman
Farms,
drove
away
potential
buyers.
Ms.
Pobol
was
unable
to sell
the
home.
62.
Todd
Milliron,
who
has
resided
at 61
Cotswold
Drive,
Yorkville,
Illinois
since
in
or
around
September 1996,
noticed
the
odor
immediately
upon
moving
into
his
home.
a.
Mr.
Milliron
noticed
the
odor
on
an
ongoing
basis
from
mid-May
until
early
October of each
year
from
1996
until
the
fall
of
2007.
Although
Mr.
Milliron
constantly
noted
the
odor,
the
odor
at
times
became
especially
intense
when
the
wind
blew
in
the
direction
of his
home.
b.
Because
of
the
ongoing
odor,
Mr.
Milliron
was
forced
to
use
air
conditioning
rather
than
leaving
windows
open.
This
caused
Mr.
Milliron
to
feel
like
a
prisoner
in
his
own
home, unable
to open
the
windows
and
get
fresh
air,
or
enjoy
the
exterior
of
his
property.
63.
Robert
and
Lynn
Smith, who
have
resided
at
9122
Lisbon
Road,
Yorkville,
Illinois
since
in or
around
1965,
noticed
the
odor
within
the
last
ten
years.
16
a.
The
Smiths
notice
the
odor
on
a
daily
basis
from
April
to
November;
however,
they
note that
the odor
can
be
particularly
bad
when
the wind
directs
the
odor
toward
their
home.
b.
The
Smiths
describe
the
odor
as a
sour
smell
that
is worse
than
typical
farm
smells.
c.
The
Smiths
held
family
reunions
on
their
property
annually
over
the
last
three
years.
Each
year,
approximately two thirds
of
their
guests
left early
due
to
the
odor.
d.
The
Smiths
find
that they
are
unable
to
enjoy outdoor
activities
on
their
property
and are
unable
to
leave
their
windows
open
when
they
otherwise
would.
64.
Larry
Alex,
who
has
resided
at 2108
Bernadette
Lane,
Yorkville,
Illinois
for
the
last
two
years,
has
noticed
the odor
since
moving
into his
home.
a.
Mr. Alex
finds
the intensity
of
the odor
is dependent
upon
the
wind
direction.
b.
Mr. Alex
finds
the odor
particularly
strong
about
two
to three
times
per month
during
the
months
of April
through
November.
c.
The odor
has
negatively
affected
Mr.
Alex’s
outdoor
activities.
65.
William
Fowler,
who has
resided
at
8577
W
Highpoint
Road,
Yorkville,
Illinois
since
1998,
has
noticed
the odor
every
summer
since
moving
into his
home.
a.
Mr.
Fowler
finds
the
odor
present
from
April
to October
or
November.
b.
Mr.
Fowler
finds
the odor
to have
a
fowl,
moldy
grass
smell
that
is
not
typical
of farms.
c.
Mr.
Fowler
is unable
to enjoy
outdoor
activities
on
his
property.
17
d.
Mr.
Fowler
finds
the
odor
embarrassing
when
he has guests
at
his
home and is
compelled
to
explain
the odor.
66.
In
applying the
landscape
waste,
HAMMAN
is allowing
the
discharge
of
contaminant
into the
environment
so as to cause
air
pollution
under section
9(a)
of
the
Act.
67.
Because
of the
aforementioned reasons,
HAMMAN
has violated
section 9(a) of
the Act.
PRAYER FOR RELIEF
WHEREFORE,
Complainant,
UNITED
CITY OF YORKVILLE,
respectfully requests
that the
Board
enter an
order
against the Respondent,
A.
Finding
that the Respondent
has violated the
Act and regulations
as
alleged
herein;
B.
Ordering
the Respondent
to
cease and
desist
from
any
further
violations
of
the Act
and associated
regulations;
C.
Ordering the
Respondent
to pay a civil
penalty
of
$50,000
for
each
such
violation,
pursuant
to Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS 5/42(a);
D.
Ordering
the
Respondent
to pay an additional
civil
penalty of
$10,000
for
each
day
during which
each such violation
continued,
pursuant to
Section
42(a)
of
the
Illinois
Environmental
Protection
Act,
415 ILCS
5/42(a);
and
E.
Authorizing
a
hearing
in this matter at which
time
the
Respondent
will be
required
to answer the
allegations
herein;
F.
Granting such
other relief
as the Board may
deem
appropriate.
18
COUNT
IV
WATER
POLLUTION
VIOLATIONS
68.
Section
12
of
the
Act,
415
ILCS 5/12
(2008), provides
in pertinent
part:
“No
person shall:
(a)
Cause
or threaten or
allow
the
discharge
of any
contaminants
into
the
environment in
any State so
as to
cause
or tend to cause water
pollution
in
Illinois.
either
alone
or in
combination
with matter
from other
sources, or
so as
to violate regulations
or standards
adopted
by
the
Pollution
Control
Board
under this
Act...
(d)
Deposit
any
contaminants
upon the land
in such place
and manner
so as to create
a
water
pollution
hazard.”
69.
Section 3.165
of the Act, 415 ILCS
5/3.165 (2008),
provides:
“Contaminant’
is any solid,
liquid,
or gaseous
matter, any odor,
or
any form
of energy, from whatever
source.”
70.
Section 3.545 of
the Act, 415
ILCS 5/3.545 (2008),
provides:
“Water
pollution’
is such
alteration
of
the physical, thermal,
chemical,
biological or radioactive
properties
of any waters
of the
State, or such discharge
of any contaminant
into any waters
of
the
State,
as will or is likely
to
create
a nuisance
or render
such waters
harmful or detrimental
or injurious
to public health,
safety or
welfare,
or to
domestic, commercial,
industrial,
agricultural,
recreational, or other
legitimate uses, or
to livestock, wild
animals,
birds,
fish,
or
other aquatic
life.”
71.
Section
3.550 of the Act,
415 ILCS
5/3.550
(2008),
provides:
“Waters’
means all
accumulations
of water,
surface and
underground,
natural,
and
artificial,
public
and private,
or
parts
thereof,
which are
wholly
or partially within,
flow
through, or
border upon
this State.”
72.
Under Section 3.165
of the Act, the landscape
waste
that HAMMAN
is
applying
is a
contaminant.
19
73.
Under
Section
3.545
of the
Act, HAMMAN’s
application of
landscape
waste is
water
pollution
in that the
landscape waste is a contaminant which
is being discharged into
ground water.
74.
In applying the
landscape
waste,
HAMMAN is allowing
the discharge of
contaminant
into the
environment so
as
to cause or tend
to
cause water
pollution
under
section
12(a) of the
Act.
75.
In
applying the landscape waste, HAMMAN is
allowing the deposit of
contaminants so as
to create a
water pollution
hazard
under section 12(d)
of the Act.
76.
Because of the
aforementioned reasons, HAMMAN
has violated sections 12(a)
and 12(d) of the
Act.
PRAYER FOR RELIEF
WHEREFORE,
Complainant, UNITED
CITY OF YORKVILLE,
respectfully requests
that
the Board
enter an order against
the Respondent,
A.
Authorizing a
hearing in this matter
at which time the
Respondent
will
be
required to
answer the allegations herein;
B.
Finding that the
Respondent
has violated the
Act and regulations
as
alleged herein;
C.
Ordering the Respondent to cease and
desist from any further violations
of
the Act
and associated regulations;
D.
Ordering the
Respondent to pay
a
civil
penalty of
$50,000
for
each
such
violation,
pursuant to
Section
42(a) of the
Illinois Environmental
Protection Act,
415
ILCS
5/42(a);
20
E.
Ordering
the Respondent
to
pay
an additional
civil
penalty
of
$10,000
for
each
day
during
which
each
such violation
continued,
pursuant
to
Section
42(a) of
the Illinois
Environmental
Protection
Act,
415
ILCS
5/42(a);
and
F.
Granting
such
other relief
as
the Board
may
deem
appropriate.
Respectfully
submitted,
UNITED
CITY
OF YORKVILLE,
Complainant,
By:
7
4
//
One
of
its Attorneys
Dated:
May
7,
2009
Thomas
G.
Gardiner
Kenneth
M. Battle
Michelle
M.
LaGrotta
Gardiner
Koch
&
Weisberg
53 W
Jackson
Blvd.,
Ste.
950
Chicago,
IL
60604
(312)
362-0000
21