CLERK’2
OFFICE
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
JUL
1
2009
UNITED
CITY
OF
YORKVILLE,
A
)
Poll
Control
Board
MUNICIPAL
CORPORATION,
)
Petitioner,
)
)
PCB
No.
08-96
v.
)
Enforcement-Land,
Air,
Water
)
HAMMAN
FARMS,
)
Respondent.
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
PETITIONER’S
MOTION
TO
STRIKE,
copies
of
which
are
herewith
served
upon
you.
Respectfully
submitted,
UNITED
CITY
OF
YORKVILLE,
Petitioner,
By:/1&/t,J4
One
of
its
Attorneys
‘ted:
.!uy
14,
2009
Thomas
G.
Gardiner
Michelle
M.
LaGrotta
GARDINER
KOCH
&
WEISBERG
53
W
Jackson
Blvd.,
Ste.
950
Chicago,
IL
60604
(312)
362-0000
Atty
ID:
29637
THIS
FILING
IS
SUBMITTED
ON
RECYCLED
PAPER
CERTIFICATE
OF
SERVICE
1,
Michelle
M. LaGrotta,
the
undersigned
certify
that
on July 14,
2009,
I have served the
attached PETITIONER’S
MOTION
TO
STRIKE,
upon:
Mr.
John
I.
Therriault, Assistant
Clerk
Illinois
Pollution Control Board
100
West Randolph Street
James
R.
Thompson Center,
Suite
11-500
Chicago, Illinois
60601-3218
(via
hand
delivery)
Bradley
P.
Halloran
Hearing
Officer
Illinois Pollution Control Board
James
R.
Thompson
Center, Ste. 22-500
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
CHelstenhinshawlaw.com,
and U.S. Mail)
Michelle
M. LaGrotta
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
UNITED
CITY
OF
YORKVILLE,
)
JUL
14
2009
A
municipal
corporation,
)
STATE
OF
ILLINOIS
Pollution
Contro’
Board
Petitioner,
)
PCB
NO.
08-96
)
v.
)
(EnfOrcement-Land,
Air,
Water)
)
HAMMAN
FARMSI
)
)
Respondents.
)
PETITIONER’S
MOTION
TO
STRIKE
NOW
COMES,
Petitioner,
United
City
of
Yorkville,
by
and
through
its
attorneys,
Gardiner
Koch
Weisberg
&
Wrona,
pursuant
to
Ill.
Admin.
Code
§
101.506,
hereby
moves
the
Illinois
Pollution
Control
Board
to
strike
Respondent
Hamman
Farms’
Motion
to
Dismiss
Counts
I-Ill
of
Amended
Complaint
and
Respondent
Hamman
Farms’
Brief
in
Support
of
Motion
to
Dismiss
Counts
I-Ill
of
Amended
Complaint,
and
in
support
of
its
motion,
Yorkville
states
as
follows:
1.
On
June
4,
2008,
United
City
of
Yorkville
(“Yorkville”)
filed
a
citizen’s
enforcement
complaint
against
Hamman
Farms
(“Hamman”)
for
violations
of
the
Illinois
Environmental
Protection
Act,
including
prohibitions
of
land,
air,
and
water
pollution.
2.
On
July
8,
2008,
Hamman
filed
its
Motion
to
Strike
and/or
Dismiss
seeking
to
strike
and/or
dismiss
Counts
II,
III,
and
IV
of
the
Yorkville’s
Complaint,
and
on
August
1,
2008,
Hamman
filed
its
Reply
in
Support
of
its
Motion
to
Strike
and/or
Dismiss.
Hamman
alleged
that
the
Count
II
was
duplicative
and
frivolous
such
that
the
Board
lacked
jurisdictional
authority
to
make
a
ruling.
Hamman
also
alleged
that
the Board lacked authority
to review
Counts
III
and IV
in
part
because
Hamman’s
conduct was authorized under 415
ILCS 5/21(q).
3.
On
October 16, 2008, the Illinois Pollution
Control Board denied Hamman’s
Motion as to Counts II and
IV, with
the exception
of striking with prejudice
Paragraph
49
of Yorkville’s Complaint
and Hamman’s requests
for attorney fees
and costs,
finding those counts sufficiently pled.
The Board granted
Ilamman’s
motion as to
Count III without prejudice.
With
the exception of Paragraph 49
of
the Complaint,
the Board disagreed
with Hamman that
it lacked jurisdictional
authority to
review
Count II.
Moreover,
it stated that
“the Board cannot conclude
that
there
clearly
is
no
set
of facts that
could be proven
that would
entitle
Yorkville
to
prevail on
count II.”
In addition, with
respect
to Counts III
and
IV,
the
Board agreed that
“even if there is compliance
with Section
21(a) exemption
from
permitting, the Board does not lack jurisdiction”
to make
a
finding that
the
Environmental Protection Act
was violated.
Therefore,
it ruled that the Board
does
have authority to rule upon the
Yorkville’s
Complaint.
4.
On November 14,
2008, Hamman filed .a Motion
for Reconsideration as to
the
dismissal
of Count
IV.
On
November
17, 2008, Hamman
filed a
Motion
to
Dismiss Counts I and
II
as
Duplicative.
In its Order
dated
April 2,
2009,
the
Board denied both
motions. The Board also denied
Yorkville’s Motion for Leave
to File
Amended Complaint and
granted
Yorkville leave
to file an Amended
Complaint
with respect to Count III. The Board
ordered Hamman to answer the
Complaint.
2
5. On
May
7,
2009,
Yorkville
filed
its
Amended
Complaint.
As
required
by the
Board’s
Order
of
April
2,
2009,
Yorkville
amended
only
Count
III
of
Yorkville’s
four-count
complaint;
the
remaining
counts
remained
unchanged.
6.
On
June
18, 2009,
the
Board
accepted
Yorkville’s
Amended
Complaint
for
hearing
and
directed
the
hearing
officer
to
proceed
expeditiously
to
hearing.
The
Board
specifically
stated,
“[wjithin
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.”
7.
On
June
30,
2009,
Hamnian
filed
a
Motion
to
Dismiss
Counts
I-Ill
of
Amended
Complaint
and
Brief
in
Support
of
Motion
to
Dismiss
Counts
I-Ill of
the
Amended
Complaint.
8. Hamman’s
most
recent
motion
attacks,
in
addition
to
Count
III,
Counts
I
and
11,
which
contained
absolutely
no
amendments.
Hamman
also
includes
new
arguments
in
its
motion
to
dismiss,
which
should
have
been
included
in
Hamman’s
prior
motions
to
dismiss.
Counts
I
and
II
have
been
subject
to
prior
motions
to
dismiss,
and
each
time
the
Board
has
upheld
Count’s
I
and
II.
Hamman’s
motion
is
merely
an
attempt
to
es
that
have
been
decided
previously
against
Hamrnan
so
as
to
prolong
litigation
and
delay
hearing
on
this
matter.
Hamman
should
be
estopped
from
making
new
arguments,
which
should
have
been
included
in
Hamman’s
prior
motions
to dismiss.
In
the
interest
of
judicial
economy,
the Board
should
strike
Hamman’s
Motion
to
Dismiss
Counts
3
1-111 of the
Amended
Complaint and
Hamman’s Brief in
Support
of Motion to
Dismiss
Counts
I-Ill of the Amended Complaint.
9.
Moreover,
pursuant to 35 Ill.
Adm.
Code
101.506, any motion
to strike,
dismiss,
or
challenge the
sufficiency of any pleading filed with
the
Board
must
be
filed
within
thirty days after
service
of
the challenged document.
Likewise,
35 111.
Adm. Code
103.212(b)
also
requires
any motions
by
respondent
alleging
that
a
citizens
complaint is duplicative or frivolous to be
filed no
later
than 30 days
following the date of
service of the complaint.
10.
Yorkville’s
Amended Complaint
was
served on Hamman
on May 7, 2009.
Hamman’s motion
was required to be filed, if at all,
no later than thirty days
following May 7, 2009, and
was time-barred as
of the date of its filing on June
30,
2009.
Furthermore, Hamman
failed
to
allege
any
material prejudice, upon which
the Board
could permit the
untimely filing
of a motion to dismiss. Therefore,
the
Board
should strike
Hamman’s Motion to Dismiss
as
untimely.
11. Should
the Board allow the Hamman’s untimely Motion to Dismiss to stand,
Yorkville
requests fourteen days to respond.
WHEREFORE,
Petitioner,
United City of Yorkville, respectfully
requests
that
the
Board strike
Respondent Hamman Farms’ Motion to Dismiss
Counts
I-Ill
of
Amended
Complaint
and
Respondent
Hamman
Farms’ Brief
in Support
of
Motion to Dismiss Counts I-Ill
of
Amended Complaint;
in
the alternative, grant Petitioner fourteen days
to respond to
Hamman
Farms’
Motion to Dismiss;
and grant
such other
relief as the
Board
deems just and equitable.
4
Respectfully submitted,
UNITED CITY
OF YORKVILLE
/11kJ/A
One of
Its
Attomey
j4
Dated: July 14,
2009
Thomas
G.
Gardiner
Michelle M.
LaGrotta
Gardiner
Koch
&
Weisberg
53 W Jackson Blvd.,
Ste. 950
Chicago, IL
606104
(3 12) 362-0000
Law
Firm
ID: 29637
5