BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNlTED CITY OF YORKVILLE, A
MUNICIPAL
CORPORATION,
Complainant,
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PCB No. 08-96
v.
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.. (Enforcement-Land, Air, Water)
HAMMAN FARMS"
Respondents.
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NOTICE OF FILING
TO; SEE ATTACHED SERVICE LIST
PLEASE
TAKE NOTICE that on June 30, 2009, we electronically filed with the Clerk of
the illinois Pollution Control Board, Motion to Dismiss Counts I-ill of Amended Complaint, a
copy of which is attached hereto and hereby served upon you.
Dated:
June 30, 2009
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbett,on LLP
100 Park Avenue
P.O. BOJ( 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On behalf of HAMMAN FARMS
/s/Charlss F. Helsten
Charles
F. Helsten
One of Its Attorneys
70S66463vl 890522 66799
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED
CITY OF YORKVILLE, a municipal
corporation,
Complainant,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and HAMMAN
FARMS,
Respondents.
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PCB No. 08-96
MOTION TO DISMISS COUNTS I-III OF AMENDED COMPLAINT
NOW COMES the Defendant, HAMMAN FARMS, by and through its attorneys
HlNSHAW
&
CULBERTSON LLP and MUELLER ANDERSON, P.C., pursuant to 735 ILCS
5/2-615, moving to dismiss Counts I-ill of Complainant's Amended Complaint, stating as
follows:
Hamman Farms is Not an
"On-Site
Compost Landscape Waste Compost
}~acility~'
1.
lllinois law defines "waste composting operation" as "an enterprise engaged
in
the prodIWtion and distribution of end-product compost." 35 ill.Adm. Code 830.102 (empbasis
added).
Complainant continues to allege that Hamman Farms
is an "On-Site Compost
Landscape Waste Compost Facility," pursuant to 415 ILCS 5/21(q)(3)
(see
,4 of Ameoded
Complaint), despite the fact that the very allegations
of the Amended Complaint squarely and
directly negate the applicability of this designation. Here, the Amended Complaint pleads no
facts that would suggest Hamman
Farms is eogaged in processing to maturity "end product
compost."
In
fact, to the contrary, the Amended Complaint expressly acknowledges that the
landscape waste received at Hamman Farms is simply ground and then directly land-applied to
the farm's fields, not processed into a product.
(See
Amended Complaint, '5). Most importantly,
the law expressly provides that "Land application is not compo sting.
U
35 nt.Adm. Code 830.102
70602387v) 890522 66799
(emphasis added). Thus, the f""ts pled in the Amended Complaint preclude, as a matter of law, a
finding that Hamman Fanns is engaged in a "composting operation."
Count I - "Open Dumping"
2.
The allegations in Count I do not state a cause of action for ""Open Dumping."
First, Complainant concedes that the Illinois Enviromnental Protection Agency has detennined
that the soil
charactelistics aod/or crop needs at Haonnan Fanns justify application of landscape
waste at a rate substantially higher than the default rate that appears at 415
!LCS 5/21(q).
Despite this, Complainant alleges that Hannnan Fanns, in land-applying landscape waste
to its
farm fields as it is expressly authorized to do, has allowed bits of garbage, refuse or litter to
become scattered in its fields.
(See generally,
Amended Complaint at Count
I).
3.
The allegation that Hamman Fanns allowed bits of garbage, refuse or litter to
become scattered in its fields does not, as a matter of
law~
state a cause of action for Open
Dumping, which is defined in the statute as the consolidation of refuse at an nnpennitted site.
Because Count I fails to allege fa<:ts showing that refuse was consolidated at Hamman Farms, the
Complaint fails to plead the facts necessary to state a cause of action for Open Dumping, and,
accordingly, Connt I should be dismissed.
4.
Count I further includes allegations that Hamman Fanus violated Sections
21(d)(I) and (2) and
21(0) of the Environmental Protection Act, which regulate the permitting of
waste~stomge!
waste-treatment, and waste-disposal facilities. Hamman Famts' use
of landscape
material in its farming operation is, however, a statutorily authorized use of landscape material to
improve agricultural productivity, specifically exempted from the statutory and regulatory
definitions relied upon by Complainant. The statutorily authorized use
of landacape waste
matelial in fanning is entirely inconsistent with the conduct prohibited
by the laws invoked by
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70602387v1 890522 66799
Electronic Filing - Received, Clerk's Office, June 30, 2009
Complainant in Count I (and IJ), which were enacted to prevent unauthorized persons from
developing and operating waste-storage, waste-tre.hnent, or waste-disposal facilities. Plowing
landscape material into farm fields to enhance crop yields and improve soil quality, all as
specifically authorized by the Environmental Protection Act. cannot be equated
with
the
"storage," "treatrn.ent," or "disposal"
of waste.
Count ll- "Landscape Waste Violations"
5.
Count II of the Amended Complaint, titled ""Landscape Waste Violations," re-
alleges the "open dumping" and "permitting" violations contained in Count
I.
For the same
reasons discussed above
with
respect to why those allegations must be dismissed in Count I, they
should be dismissed in Count II.
6.
Count II also alleges a violation of Section 21(q)(2), a legal impossibility. Section
21(q)(2) does not mandate or prohibit anything, but instead explaios that the application
of
landscape waste material to fields at agronomic rates (or higher rates as detennined by the
Ageocy, as here) does not require a pennit. The Amended Complaint acknowledges that the
Agency has detennined that the appropriate, site-specific agronomic rate for Hamman Fauns' use
of such material is substantially higher than the default rate. (Amended Complaint, General
Allegations,
~22).
One cannot "violate" Section 21(q)(2), and the allegation that Hamman Farms
did so must be dismissed as a matter of law.
Count HI - "Air Pollution"
7.
Complainant
has
not cured the defects which led the Board to dismiss Count III,
alleging air pollution, on October
16,2008. This Board', procedural rules require complaints to
contain "[t]he dates, location, events, nature, extent, and strength of discharges of emissions and
consequences alleged to constitute violations of the Act and regulations." 35 Ill.Adm. Code
3
70602387vl
8905ZZ 66799
Electronic Filing - Received, Clerk's Office, June 30, 2009
103.204(c). Complainant
has
again only made sweeping legal assertions which lack the
specificity demanded
by the Rule.
8.
Complainant has failed to establish either a site-specific or causal nexus with
respect to its air pollution allegations. The Amended Complaint does not allege that there is any
consistency or even similarity among the "'odors" it alleges neighboring landowners have noticed
at various non-specific points over 15+ years. Not does the Amended Complaint allege that the
supposed consequences of these
~'odors"
bear any causal nexus or relationship to any facility.
material, or item on the Hamman Farms property.
9.
Moreover, Complainant has failed to sufficiently allege the location, events, and
nature with respect to each of the alleged "odors," and has not included any allegation with
respect to the extent and strength of the alleged "odors." Simply put, the Amended Complaint is
not sufficiently specific under this Board's procedural rules to advise Hamman of the extent and
nature
of the alleged violations to reasonably allow prepanrtion of a defense.
10.
In
the alternative, should th.is Board deem the allegations of Count
ill
sufficient, it
must strike any and all allegation. relating to alleged air pollution that occurred more than two
years prior to the filing of the Amended Complaint. ll1inoi. law provides for a two year statute
of limitations on actions for damages for a statutory penalty. 735 !LCS
5/13-202.
Complainant
has alleged air pollution violations going back more than fifteen years, yet has failed to allege in
any fashion that these violations are in any way a continuing violation, as required by Illinois
law, and in fact carmot do so given the seasonal nature
of the
Hamman Farms operation.
11.
For the reasons listed herein, and as further discussed in Hamman Fanns' brief
in
support of this motion, filed concurrently herewith, Counts I-III of the Amended Complaint
should
be dismissed in their entirety.
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70602387vl 890522 66799
Electronic Filing - Received, Clerk's Office, June 30, 2009
WHEREFORE, Defendant, HAMMAN FARMS, prays that this Board dismiss Counts 1-
III of Complainant's Amended Complaint, and grant such other and further relief as the Board
deems appropriate.
Dated:
-----------------
Charles F. Helsten
Michael
F. Iasparro
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, 1L 61105-1389
Phone:
815-490-4900
Fax:
815-490-4901
HAMMAN FARMS
By:
---;;:---;;:::-:----:-c-------------
One of Their Attorneys
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George Mueller
Mueller Anderson,
P.C.
609 Elna Road
Ottawa, IL
61350
8151431-1500
70602387vl
890S22 66799
AJ;.FIDA VIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure,
hereby under penalty of peIjory under the laws of !he United States of America,
certifies that
on JlUle 30, 2009, 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
illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100
w. Randolph Street
Chicago,IL 60601
(via email: haUorab@ipcb.state.iLus)
Via electronic filing andlor e-mail delivery.
PCB No. 08-96
Charles F. Helsten
Nicola
A.
Nelson
HINSHAW
&
CULBERTSON
\00 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
Thomas G. GaTdiner
Michelle M. LaGrotta
GARDINER
KOCH
&
WEISBERG
53 W. Jackaon Blvd., Ste. 950
Chicago,
IL 60604
tgardiner@gkw~law,com
mlagrotta@gkw-Iaw.com
70567539v1 890522 66799
