CLERKS
OFFICE
AVG
112009
SE’rE
OFIWNO,S
POtlutfrn
Control
Board
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
UNITED
CITY
OF
YORKVILLE,
)
A
MUNICIPAL
CORPORATION,
)
)
Complainant,
)
)
PCB
No.
08-96
v.
)
(Enforcement-
Land,
Air,
Water)
)
HAMMAN
FARMS,
)
)
Respondents.
)
NOTICE
OF
FILING
TO:
SEE
ATTACHED
SERVICE
LIST
PLEASE
TAKE
NOTICE
that
on
August
11,
2009,
we
electronically
filed
with
the
Clerk
of
the
Illinois
Pollution
Control
Board,
Complainant’s
Motion
for
Leave
to
File
Reply
in
Support
of
its
Motion
to
Strike
and
Complainant’s
Reply
in
Support
of
its
Motion
to
Strike,
copies
of
which
are
attached
hereto
and
hereby
served
upon
you.
Dated:
August
Ii,
2009
Respectfully
submitted,
UNITED
CITY
OF
YORK
VILLE
/4J/J
/A
One
of
Its
Attorneys
Thomas
G.
Gardiner
Michelle
M.
LaGrotta
GARDENER
KOCH
WESIBERG
&
WRONA
53
W.
Jackson
Blvd.,
Suite
950
Chicago,
IL
60604
312-362-0000
Atty
ID:
29637
S’:” •.
-s:
• —i
k
i_
:C
‘
AFFIDAVIT
OF SERVICE
The
undersigned,
pursuant
to
the
provisions
of
Section
1-109
of the Illinois Code
of Civil
Procedure, hereby
under
penalty
of perjury
under
the laws of
the
United
States
of
America,
certifies
that on
August 11, 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 hand delivery)
Bradley
P.
Halloran
1-learing Officer
Illinois
Pollution
Control
Board
James R.
Thompson
Center, Suite
11-500
100 W.
Randolph
St.
Chicago,
IL
60601
(via hand
delivery)
Charles F.
Heiston
Nicole A.
Nelson
Hinshaw
&
Culbertson
100
Park Avenue
P0
Box
1389
Rockford,
IL 61105-1389
(via
email to:
NNelsonJhinshawlaw.com
and
CHeIsten@hinshawlaw.com,
and U.S.
Mail)
- ifit>hi/
b-b
Thomas G.
Gardiner
Michelle
M.
LaGrotta
GARDINER
KOCH
WEIS
BERG
&
WRONA
53
W. Jackson
Blvd.,
Suite 950
Chicago,
IL
60604
312-362-0000
Atty ID:
29637
AUG
112009
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
c
Oh1tOi8od
UNITED
CITY
OF
YORKVILLE,
)
A
MUNICIPAL
CORPORATION,
)
)
Complainant,
)
)
PCB
No.
08-96
v.
)
(Enforcement-
Land,
Air,
Water)
)
HAMMAN
FARMS,
)
Respondents.
)
COMPLAINANT’S
MOTION
FOR
LEAVE TO
FILE
A
REPLY
IN
SUPPORT
OF
ITS
MOTION
TO
STRIKE
NOW
COMES
the
Complainant,
UNITED
CITY
OF
YORKVILLE,
by
and
through
its
attorneys, GARDINER
KOCH
WEISBERG
&
WRONA,
pursuant
to
35
Ill.
Adm.
Code
101
.500(e),
and
hereby
requests
leave
to file
Reply
in
Support
of
its Motion
to
Strike
in
order
to
respond
to
Respondent’s
Response
in
Opposition,
stating
as follows:
1.
On
June
30,
2009,
Respondent
HAMMAN
FARMS
filed
its
Motion
to
Dismiss
Counts
I-Ill
of
Amended
Complaint.
2.
On
July
14, 2009,
Complainant,
UNITED
CITY
OF
YORKVILLE
filed
its
Motion
to
Strike
3.
On
July
28,
2009,
Respondent
HAMMAN
FARMS
filed
its
Response
to
Yorkville’s
Motion
to
Strike
Respondent’s
Motion
to
Dismiss,
which
misrepresents
law
concerning amended
complaints,
the
Board’s
rules
governing
time
for
filing
motions
to
dismiss,
and
the
Board’s
rulings
in
its
April
30,
2009
Opinion
and
Order.
4.
In the
absence
of an
opportunity
to file
a
Reply
in
support
of
its
Motion
Strike,
United
City
of
Yorkville
will
be
materially
prejudiced.
5.
Yorkville
has
prepared
a Reply,
which
addresses
the
misrepresentations
of
Hamman
Farms’
Response,
and
by
this Motion
seeks
leave
to file
its Reply
with
the
Board
to
avoid
material
prejudice.
A copy
of the proposed
Reply
is
attached
hereto.
WHEREFORE, Complainant
United
City
of
Yorkville
respectfully
requests
that
the
Board
grant leave
to
file
its
Reply
in
Support
of its Motion
to Strike,
a
copy
of which
is
attached
hereto.
Dated:
August
11,
2009
Respectfully
submitted,
UNITED
CITY
OF
YORKVILLE
One of
Its Attorneys
Thomas
G.
Gardiner
Michelle
M.
LaGrotta
GARDINER KOCH
WEISBERG
&
WRONA
53
W. Jackson
Blvd.,
Suite
950
Chicago,
IL 60604
312-362-0000
Atty
ID:
29637
LERF(S
OFFICE
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
AUG
ii
A
UNITEDMUNICIPALCITY
OF
CORPORATION,YORKVILLE,
)
)
POIIUtjQfl
STATE
OF
Control
ILLINOIS
8Qa_fj
)
Complainant,
)
)
PCB
No.
08-96
v.
)
(Enforcement-
Land,
Air,
Water)
)
HAMMAN
FARMS.
)
)
Respondent.
)
COMPLAINANT’S
REPLY
IN
SUPPORT
OF
ITS
MOTION
TO
STRIKE
NOW
COMES,
the
Complainant,
UNITED
CITY OF
YORKVILE,
by
and
through
its
attorneys,
Gardiner
Koch
Weisberg
&
Wrona,
and
for
its
Reply
in
Support
of
its
Motion
to
Strike,
it states
as
follows:
I.
HAMMAN
FARMS’S
MOTION
WAS
UNTIMELY
AND
SHOULD
BE
STRI
CKEN.
The
Illinois Pollution
Control
Board
(hereinafter
referred
to
as
“Board”)
did
not
grant
Respondent
Hamman
Farms
additional
time
beyond
the
thirty-day
time
period
to
file
a motion
to
dismiss. The
Board’s Order
of April
2,
2009
states
that
Hamman
Farms
could
file
an
answer
on
or
before
July
6,
2009.’
The
Board’s
Order granted
no
additional
time
for
Hamman
Farms
to
file
any
motion
to
dismiss
or
other
motion challenging
the
sufficiency
of
the
complaint.
In
fact,
the
Board’s
Order
of
June
1 8,
2009
specifically
references
the
thirty-day
time
limit
for
filing
a
motion
to
dismiss and
finds
that
Hamman Farms
failed
to
file
any
motion
responsive
to
the
amended complaint.
See
pg.
2
of
the
Board’s
Order
of
June
18,
2009
attached
hereto
as
Exhibit
1.
The
Board’s order
of
April
2,
2009
is
consistent
with
the
Illinois
Administrative
Code,
which
After
Hamman
agreed
to
an
extension
and
the
hearing
officer
Bradley
Halloran
granted
Yorkville’s
request
for
a
three-day
extension
in
his
Order
dated
May
6,
2009,
the
Board
granted
Hamman
Farms
three
additional
days
to
file
its
Answer
to
Yorkville’s
Amended
Complaint.
Pursuant
to
the
Board’s
Order
of
June
18,
2009,
Hamman
Farms’
Answer
was
due
on
or
before
July
10,
2009.
grants
respondents
sixty
days
to
file an
answer
to the complaint
and
only
thirty
days
to file
any
motions
to dismiss
pursuant
to 35 Iii.
Adm.
Code
§
101.506
and
103.212(b).
Because
the
Board
did not
grant
Hamman
Farms
additional,
any motion
challenging
Yorkville’s
complaint
pursuant
to
35111. Adm.
Code
§
101
.506
and 103.2
12(b) should
have
been filed
on or
before
June 8, 2009.
Because
Hamman
Farms
flied
its
motion
to dismiss
more
than three
weeks later,
the motion
was
untimely and
should
be stricken.
II.
HAMMAN
FARMS’
MOTION
TO DISMISS
IS MERELY
AN
ATTEMPT
TO
PROTRACT
LITIGATION
Hamman
Farms
filed its
motion
to
dismiss
solely
to
protract
litigation
by
making new
arguments
that
could
have
and
should have
been
raised
in its
first
motion
to dismiss.
Hamman
Farms
attempts to
argue
that because
Yorkville
filed
an
amended
complaint,
Hamman
Farms
must
preserve
its
objections
to
the amended
complaint.
If
Hamman
Farms
were
seeking
to
preserve
its
former
objections
for
the record,
its
arguments
should
have been
identical
to
the
ones
that were
contained
in
its original
motion.
However,
Hamman
Farms
now attempts
to have
Counts
I and
II of
Yorkville’s
Amended
Complaint
dismissed
on completely
new
grounds.
Counts
I
and
II of the
Amended
Complaint
are identical
to Counts
land
II
of
Yorkville’s
original
complaint.
Hamman
Farms
did not
make the
arguments
contained
in its Motion
to
Dismiss
Counts
I-Ill
of
Amended
Complaint
in its
original
two motions
to
dismiss.
2
Had Hamman
Farms
believed
it
was
necessary
to
preserve these
arguments,
it should
have
raised the
new arguments
now contained
in
the
when
it filed
its motion
to
dismiss
following
the original
complaint.
Hamman
Farms is
merely
trying
to have
a
second bite
at the
apple
after
its
first two
attempts
failed.
Because
Hamman
Farms
failed to
raise
its new
arguments
in
its
original
motions
to
2
Hamman
Farms
filed
its
Motion
to
Strike
and/or Dismiss
on
July 8,2008.
Then
on November
17, 2008,
it
filed
Respondent’s
Motion
to
Dismiss
Counts
I
and
II as
Duplicative.
dismiss,
the
Board
should
find
that
the arguments
waived
and
strike
Hamman
Farms’
Motion
to
Dismiss
Counts
1-Ill
of the
Amended
Complaint.
WHEREFORE, the United
City
of Yorkville
respectfully
requests
the
Board
grant
United
City
of Yorkville’s Motion
to
Strike,
and
grant
such
other
relief
as the
Board deems
just
and
equitable.
Datcd:
August
11,
2009
Respectfully
submitted,
On behalf
of
UNITED
CITY
OF YORKVILLE
One
MAJtJl
of
Its Attorneys
u1”
Thomas
G.
Gardiner
Michelle
M.
LaGrotta
GARDINER
KOCH
WESIBERG
&
WRONA
53
W.
Jackson
Blvd.,
Suite
950
Chicago,
IL
60604
312-362-0000
Atty
ID: 29637
ILLINOIS
POLLUTION
CONTROL
BOARD
June
18,
2009
UNITED
CITY
OF
YORKVILLE,
a
municipal)
corporation,
)
Complainant,
)
)
PCB
08-96
(Citizen’s
Enforcement
— Land,
Air,
Water)
HAMMAN
FARMS,
)
Respondent.
)
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
1
6,
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
Ill
(“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
11
(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
Yorkvill&s
complaint.
The
Board
also
denied
Hamman’s
November
12,
2008
motion
to dismiss
counts
1
(“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
Ill,
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
rIB1T1
2
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
2
1(q)
of
the
Act
(415
ILCS
5/9(a).
12(a).
12(d).
21
(a).
21
(d)(
I).
21
(d)(2).
21(e),
21
(p)(
I),
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
withouta
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)(l)
ofthe
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
“[ujnless
the
Board
determines
that
such
complaint
is
duplicative
or
frivolous,
it
shall
schedule
a
hearing.”
Id.;
see
also
35111.
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
III.
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.
35111.
Adm.
Code
103.2
12(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
5/3
1
(d)(
1)
(2006);
35111.
Adm.
Code
103.2
12(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.
Adrn.
Code
103.204(d).
3
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.”
35111.
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
3
3(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(.)
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:
4
(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
3
3(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
SOORUR.D.
I.
John
I.
Therriault.
Clerk
of
the
Illinois
Pollution
Control
Board.
certify
that
the
Board
adopted
the
above
order
on
June
1
8,
2009,
by
a
vote
of
5-0.
John
T.
Therriault,
Assistant
Clerk
Illinois
Pollution
Control
Board
