ILLINOIS POLLUTION CONTROL BOARD
June 18, 2009
UNITED CITY OF YORKVILLE, a municipal
corporation,
Complainant,
v.
HAMMAN FARMS,
Respondent.
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PCB 08-96
(Citizen’s Enforcement – Land, Air, Water)
ORDER OF THE BOARD (by T.E. Johnson):
Today the Board finds that United City of Yorkville’s amended complaint is neither
duplicative nor frivolous and accepts the amended complaint for hearing. In this order, the
Board first provides the procedural history of the case. The Board then addresses the amended
complaint, after which the Board discusses hearing and gives Hamman Farms until July 9, 2009,
to file an answer to the amended complaint.
PROCEDURAL HISTORY
On June 4, 2008, United City of Yorkville (Yorkville) filed a four-count citizen’s
enforcement complaint against Hamman Farms (Hamman) concerning Hamman’s application of
landscape waste to Hamman’s farmland in Kendall County. Yorkville alleged that Hamman
violated provisions of the Environmental Protection Act (Act) (415 ILCS 5 (2006)) prohibiting
land, air, and water pollution and unpermitted waste handling activities. On October 16, 2008,
the Board ruled on Hamman’s July 8, 2008 motion to strike or dismiss most of Yorkville’s
complaint. Specifically, the Board dismissed without prejudice count III (“Air Pollution
Violations”) of Yorkville’s complaint as insufficiently pled, but denied Hamman’s motion to
dismiss counts II (“Landscape Waste Violations”) and IV (“Water Pollution Violations”). In
addition, the Board granted Hamman’s motion to strike with prejudice both paragraph 49 of
count II (alleging violations by the Illinois Environmental Protection Agency) and Yorkville’s
requests for attorney fees and costs. The Board also accepted for hearing Yorkville’s complaint
as modified by the Board’s order.
On April 2, 2009, the Board denied Hamman’s November 14, 2008 motion to reconsider
the Board’s October 16, 2008 decision denying Hamman’s motion for dismissal of count IV of
Yorkville’s complaint. The Board also denied Hamman’s November 12, 2008 motion to dismiss
counts I (“Open Dumping Violations”) and II as duplicative. In addition, the Board denied
Yorkville’s December 1, 2008 motion for leave to file an amended complaint setting forth a
modified count III, finding that Yorkville’s proposed amendment would not cure all of the
deficiencies identified in the Board’s October 16, 2008 order. However, the Board granted
Yorkville leave to file an amended complaint by May 4, 2009, to remedy count III in accordance
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with the Board’s order. On May 7, 2009, Yorkville filed an amended complaint. Although
Yorkville’s amended complaint was filed three days late and not accompanied by a motion for
leave to file
instanter
, the Board accepts the filing in the interest of administrative economy and
as no material prejudice to Hamman will result.
AMENDED COMPLAINT
Yorkville’s four-count amended complaint alleges that Hamman violated Sections 9(a),
12(a), 12(d), 21(a), 21(d)(1), 21(d)(2), 21(e), 21(p)(1), and 21(q) of the Act (415 ILCS 5/9(a),
12(a), 12(d), 21(a), 21(d)(1), 21(d)(2), 21(e), 21(p)(1), 21(q) (2006)). Yorkville further alleges
that Hamman violated these provisions by (1) applying landscape waste mixed with litter and
general refuse to Hamman’s farm fields and then allowing the litter and general refuse to remain;
(2) allowing open dumping, conducting waste-storage and waste-disposal operations without a
permit, allowing Hamman’s farm to become a waste disposal site without a permit, and failing to
obtain a landscape waste composting operation permit or qualify for an exemption from
permitting; (3) allowing the discharge of odor into the environment so as to cause air pollution
by unreasonably interfering with Yorkville residents’ use and enjoyment of life and property;
and (4) allowing the discharge of a contaminant into the environment so as to cause or tend to
cause water pollution, and the deposit of a contaminant so as to create a water pollution hazard.
For each of the four counts of the complaint, Yorkville asks the Board to order Hamman to cease
and desist from further violations and to pay a civil penalty of $50,000 for each violation and an
additional civil penalty of $10,000 for each day during which the violation continued.
Section 31(d)(1) of the Act (415 ILCS 5/31(d)(1) (2006)) allows any person to file a
complaint with the Board. Section 31(d)(1) further provides that “[u]nless the Board determines
that such complaint is duplicative or frivolous, it shall schedule a hearing.”
Id.
;
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. A complaint is
frivolous if it requests “relief that the Board does not have the authority to grant” or “fails to state
a cause of action upon which the Board can grant relief.”
Id.
Within 30 days after being served
with a complaint, a respondent may file a motion alleging that the complaint is duplicative or
frivolous. 35 Ill. Adm. Code 103.212(b). Hamman has filed no motion responsive to the
amended complaint. No evidence before the Board indicates that Yorkville’s amended
complaint is duplicative or frivolous.
HEARING AND ANSWER
The Board accepts the amended complaint for hearing.
See
415 ILCS 5/31(d)(1) (2006);
35 Ill. Adm. Code 103.212(a). The Board’s April 2, 2009 order made any answer from Hamman
to any amended complaint due by July 6, 2009. Because the amended complaint was filed three
days late, the Board now makes any answer to the amended complaint due by July 9, 2009. A
respondent’s failure to timely file an answer to a complaint may have severe consequences.
Generally, if Hamman fails to timely file an answer specifically denying, or asserting insufficient
knowledge to form a belief of, a material allegation in the amended complaint, the Board will
consider Hamman to have admitted the allegation.
See
35 Ill. Adm. Code 103.204(d).
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The Board directs the hearing officer to proceed expeditiously to hearing. Among the
hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and
concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete
record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,
if any, for the alleged violations, including any civil penalty.
If a complainant proves an alleged violation, the Board considers the factors set forth in
Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the violation.
See
415
ILCS 5/33(c), 42(h) (2006). Specifically, the Board considers the Section 33(c) factors in
determining, first, what to order the respondent to do to correct an on-going violation, if any,
and, second, whether to order the respondent to pay a civil penalty. The factors provided in
Section 33(c) bear on the reasonableness of the circumstances surrounding the violation, such as
the character and degree of any resulting interference with protecting public health, the technical
practicability and economic reasonableness of compliance, and whether the respondent has
subsequently eliminated the violation.
If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
on the respondent, only then does the Board consider the Act’s Section 42(h) factors in
determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may
mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,
whether the respondent showed due diligence in attempting to comply, any economic benefit that
the respondent accrued from delaying compliance, and the need to deter further violations by the
respondent and others similarly situated.
With Public Act 93-575, effective January 1, 2004, the General Assembly changed the
Act’s civil penalty provisions, amending Section 42(h) and adding a new subsection (i) to
Section 42. Section 42(h)(3) now states that any economic benefit to respondent from delayed
compliance is to be determined by the “lowest cost alternative for achieving compliance.” The
amended Section 42(h) also requires the Board to ensure that the penalty is “at least as great as
the economic benefits, if any, accrued by the respondent as a result of the violation, unless the
Board finds that imposition of such penalty would result in an arbitrary of unreasonable financial
hardship.”
Under these amendments, the Board may also order a penalty lower than a respondent’s
economic benefit from delayed compliance if the respondent agrees to perform a “supplemental
environmental project” (SEP). A SEP is defined in Section 42(h)(7) as an “environmentally
beneficial project” that a respondent “agrees to undertake in settlement of an enforcement action
. . . but which the respondent is not otherwise legally required to perform.” SEPs are also added
as a new Section 42(h) factor (Section 42(h)(7)), as is whether a respondent has “voluntary self-
disclosed . . . the non-compliance to the [Illinois Environmental Protection] Agency” (Section
42(h)(6)). A new Section 42(i) lists nine criteria for establishing voluntary self-disclosure of
non-compliance. A respondent establishing these criteria is entitled to a “reduction in the portion
of the penalty that is not based on the economic benefit of non-compliance.”
Accordingly, the Board further directs the hearing officer to advise the parties that in
summary judgment motions and responses, at hearing, and in briefs, each party should consider:
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(1) proposing a remedy for a violation, if any (including whether to impose a civil penalty), and
supporting its position with facts and arguments that address any or all of the Section 33(c)
factors; and (2) proposing a civil penalty, if any (including a specific total dollar amount and the
portion of that amount attributable to the respondent’s economic benefit, if any, from delayed
compliance), and supporting its position with facts and arguments that address any or all of the
Section 42(h) factors. The Board also directs the hearing officer to advise the parties to address
these issues in any stipulation and proposed settlement that may be filed with the Board.
IT IS SO ORDERED.
I, John T. Therriault, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on June 18, 2009, by a vote of 5-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
