VERNON AND ELAINE ZOHFELD,
COMPLAINANTS
vs .
ROBERT DRAKE, WABASH
VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D .
HORTON AND STEVE KINDER,
RESPONDENTS
Stephen F. Hedinger, Esq
.
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
CAUSE NO. PCB 2005-193
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that on today's date an original and nine (9) copies of
Respondent Drake's Amended Answer and Affirmative Defenses,
and of this Notice of
Filing, were served by U.S. mail upon the Clerk of the Illinois Pollution Control Board and
Hearing Officer Carol Webb, Esq ., and one (1) copy to each of the following parties of
record in this cause
:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601-3218
Carol Webb, Esq .
Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
Thomas G. Safley, Esq
.
Gale W. Newton, Esq .
HODGE DWYER ZERMAN
3150 Roland Avenue
P.O. Box 5776
Springfield IL 62705-5776
RECEIVED
CLERK'S OFFICE
MAR 2 9 2006
STATE
OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
by enclosing same in an envelope with postage fully prepaid, and by depositing said
envelope with the United States Postal Service in Evansville Indiana before 5
:30 p.m. on 27
March, 2006
.
THIS FILING SUBMITTED ON RECYCLED PAPER
FINE & HATFIELD
A Pmfc
nl Qoq,n .n n
no. BOX
771)
EVANSVILLE, INDIANA 47705 .077)
1812142.559'_
Respectfully submitted,
Thomas H . Bryan
IN # 2958-82
IL #328367
A Member with the law firm of:
F
I N E
i H
A T F I E L D
,
A
Professional Corporation
520 N.W. Second Street
P.O. Box 779
Evansville, Indiana 47705-0779
Telephone: (812) 425-3592
Fax: (812) 421-4269
E-mail: thb@fine-hatfield .com
Attorneys for Robert Drake
Respondent
BEFORE THE ILLINOIS POLLUTION
BOARD
VERNON AND ELAINE ZOHFELD,
COMPLAINANTS
vs .
ROBERT DRAKE, WABASH
VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D .
HORTON AND STEVE KINDER,
RESPONDENTS
RESPONDENT DRAKE'S AMENDED ANSWER AND AFFIRMATIVE
DEFENSES
Comes now Respondent Robert Drake (hereafter "Drake"), by counsel,
Thomas H. Bryan of the firm of Fine & Hatfield, a professional corporation, and for
his Amended Answer and Affirmative Defenses to the Complaint filed by
Complainants, Vernon and Elaine Zohfeld (hereafter collectively "Zohfelds"), states
as follows
:
AMENDED ANSWER
1 .
The allegation that the "Complaint is being brought pursuant to Section
31 of the Illinois Environmental Protection Act, 415 ILCS 5/31" states a legal
conclusion to which no response is required. To the extent that Paragraph 1 makes
any further allegations of fact, Drake denies the same .
FINE & HATFIELD
eo
WX 779
EVANSVII, INDIANA 47705.C77&)
181714?S1
Li
592
CAUSE NO. PCB 2005-193
RECEIVE'
CLERKS OFFICE
CONTRJ
R
29 2006
STATE OF ILLINOIS
Pollution Control Board
2
.
Drake admits that Zohfelds have property located in Hamilton County,
but has insufficient information to admit or deny whether each of them were in
residence at any or all the times referenced in the Complaint, and therefore deny all
remaining allegations contained in Paragraph 2, and respectfully demand strict proof
thereof .
3
.
To the extent that Paragraph 3 indicates that the Zohfelds were located
in Hamilton County, Drake admits such allegation ; further answering, has insufficient
information to admit or deny any and all the remaining allegations contained in
Paragraph 3, and therefore denies this allegation and respectfully demands strict proof
thereof.
4
.
Drake admits the allegations contained in Paragraph 4 .
5 .
Drake admits that in May, 2000 he was the owner or one of the owners
of the property referenced in this Paragraph 5, but denies that he is the current owner
thereof and therefore denies the remaining allegations contained in Paragraph 5 not
specifically admitted
.
6
.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 6, and therefore denies this allegation and
respectfully demands strict proof thereof
7
.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 7, and therefore denies this allegation and
respectfully demands strict proof thereof.
8
.
Without admitting that the same has occurred in this matter as
described by the Complainants, or that by so describing them, there is any legal effect
of the labeling of the movement of agrichemical spray particles and vapors, Drake
will accept Complainants' use of the descriptive words referenced in Paragraph 8
.
9 .
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 9, and therefore denies this allegation and
respectfully demands strict proof thereof.
10 .
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 10, and therefore denies this allegation and
respectfully demands strict proof thereof.
11
.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 11, and therefore denies this allegation and
respectfully demands strict proof thereof .
12
.
This Respondent has insufficient information to admit or deny knowing
the actual relationship between the parties referenced in this paragraph 12, but further
3
answering, and upon information and belief, believes the allegations therein to be
true .
13 .
Drake admits only so much of Paragraph 13, as follows : that prior to
the planting season for the spring of the year 2000, he informed Wabash Valley of the
crops he intended to plant for the year, and that following that arrangement, Wabash
Valley selected an agrichemical/fertilizer program to be used on Drake's farm
property, to be applied at the time of and under the direction and control of Wabash
Valley; further answering, denies the allegations contained in Paragraph 13 which
assert: "at Drake's express request and with his knowledge, support, and
involvement," the activities occurred; further answering has insufficient information
to admit or deny any and all the remaining allegations contained in Paragraph 13, and
therefore denies these remaining allegations and respectfully demands strict proof
thereof
14 .
Drake denies the allegations contained in Paragraph 14
.
15 .
Drake denies the allegations contained in Paragraph 15
.
16 .
Drake denies the allegations contained in Paragraph 16
.
17 .
Drake denies the allegations contained in Paragraph 17
.
18 .
Drake has insufficient information to admit or deny the allegations
contained in Paragraph 18, and therefore denies them and respectfully demands strict
proof thereof.
19 .
Drake denies the allegations contained in Paragraph 19, and
specifically denies the application of any agricultural chemicals or fertilizers on
Drake's property in the vicinity of the Zohfeld property since May of the year 2000
.
4
20 .
Drake denies the allegations contained in Paragraph 20
.
AFFIRMATIVE DEFENSES
For his affirmative defenses to the Complaint, Drake says and alleges as
follows
:
First Affirmative Defense :
1
.
Drake owned and farmed property in Hamilton County Illinois in the
year 2000. A part of his property abuts that of the Complainants to the west and south
of the property of Complainants
.
2 .
Drake approached Wabash in the spring of 2000, and informed
representatives of that company as to what crops he intended to plant that year, and
the fertilizer he wanted applied . Thereafter, as customary for Drake and his dealings
with Wabash Valley Service Company, the company made the decision on what
agrichemicals to apply to support that planting
.
3
.
Prior to the application, he asked Wabash to inform him when the
application would occur, and was notified of same, though the decision on how the
application would be made and the equipment to be used was solely that of Wabash .
4 .
That although Drake observed the application, he did not direct or
control in any way the process of the application of May 8, 2000 nor the chemicals
which were applied, other than as mentioned above, the initial decision on the
fertilizer he desired to have placed on his fields . The operation of the applicators,
mixing of products for application, and the actual application of those products was
solely within the direction and control of Wabash Valley Service Company
.
5
5
.
That the Complainants filed a civil suit against Drake and Wabash
Valley, as well as several manufacturers of agricultural products, alleging injury to
their horses as a result of an alleged spray drift incident on June 26, 1998. Plaintiffs
chose to file it in Hamilton County, but took a voluntary dismissal in December of
2000 and re-filed the case in White County. The Respondents requested that the case
be moved back to Hamilton County on
a
Forum Non Conveniens
basis which the
White County Court granted, and the Appellate Court affirmed, September 8, 2004
.
The case is now pending in Hamilton County involving the present parties, and
discovery is ongoing
.
Second Affirmative Defense :
1
.
Any claim for any alleged wrongdoing, improper application of
agrichemicals, or any action related to any acts or omissions of Drake or the other
defendants prior to May 8, 2000 is barred by the applicable statue of limitations
.
REQUEST FOR RELIEF
WHEREFORE, Respondent Drake by his attorneys, Thomas H. Bryan of the
firm of Fine & Hatfield, a professional corporation, prays the Board to find against
Complainants and for Respondent Drake, and that the Board award all relief just and
proper in the premises .
6
This document printed on recycled paper
omas H. Bryan
IN # 2958-82
IL # 328367
A member with the law firm of
:
FINE & HATFIELD,
A Professional Corporation
520 N.W. Second Street
P.O. Box 779
Evansville, Indiana 47705-0779
Telephone: (812) 425-3592
Attorneys for Robert Drake
Respondent
7
