BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    PEOPLE
    OF
    THE
    STATE
    OF
    ILLINOIS,
    vs.
    Complainant,
    )
    )
    )
    )
    )
    )
    PCB
    No.
    07-70
    CLR1<Js
    or9c
    OCT
    72008
    ST,r
    o
    ILLINOIS
    OfIutjor1
    Controi
    J.
    B.
    TIMMERMANN
    FARMS,
    LTD.
    an
    Illinois
    Corporation,
    Respondent.
    )
    (Enforcement-Water)
    )
    )
    )
    )
    NOTICE
    OF
    FILING
    TO:
    Andrew
    J.
    Nicholas,
    Assistant
    Attorney
    General,
    State
    of
    Illinois,
    Attorney
    General
    of
    the
    State
    of
    Illinois,
    500
    South
    Second
    Street,
    Springfield,
    Illinois
    62706.
    PLEASE
    TAKE
    NOTICE
    that
    on
    this
    date
    I
    mailed
    for
    fihin,yvith
    the
    Clerk
    of
    the
    Pollution
    Control
    Board
    of
    the
    State
    of
    Illinois,
    an
    ANSWSR
    TO
    COMPLAINT
    AND
    AFFIRMATIVE
    DEFENSES,
    a
    copy
    of
    which
    is
    you.
    Dated:
    f2c
    ‘z_1S
    ,2008
    James
    Richard
    Myers
    Reg.
    No.
    06225705
    Attorney
    for
    J.
    B.
    Timmermann
    Farms,
    Ltd.
    LeFevre
    Oldfield
    Myers
    Apke
    &
    Payne
    Law
    Group,
    Ltd.
    303
    S.
    Seventh
    St.,
    P.O.
    Box
    399
    Vandalia,
    IL
    62471
    Telephone:
    (618)
    283-3034
    Fax:
    (618)
    283-3037
    File
    #5753/9601
    James
    Ricard
    Ms,
    Attorney
    for
    J.
    B.
    Timfnel.Inn
    Fs,
    Ltd.
    servedupon

    BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    LERK
    S
    OFFICE
    PEOPLE
    OF
    THE STATE
    OF
    )
    ILLINOIS,
    )
    OCT
    172008
    )
    STATE
    OF
    ILLINOIS
    Complainant,
    )
    PO1IUto
    Control
    Board
    )
    vs.
    )
    PCBNo.
    07-70
    )
    (Enforcement-Water)
    J.
    B. TIMMERMAN
    FARMS,
    LTD.
    )
    an
    Illinois
    Corporation,
    )
    )
    Respondent.
    )
    ANSWER
    TO
    COMPLAINT
    AND
    AFFIRMATIVE
    DEFENSES
    COUNT
    I
    COMES
    NOW
    the
    Respondent,
    J. B.
    Timmermann
    Farms,
    Ltd.,
    by
    and
    through
    its
    attorney,
    James
    Richard
    Myers
    ofLeFevre
    Oldfield
    Myers
    Apke
    &
    Payne Law
    Group,
    Ltd.,
    and
    for its
    Answer
    to
    the allegations
    of
    Count
    I of the
    Complaint
    filed against
    it states:
    1.
    Respondent
    lacks
    sufficient
    information
    as to
    the matters
    alleged
    in Paragraph
    1
    of
    Count
    I of
    the Complaint,
    and
    therefore
    denies
    same.
    2.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    2
    of Count
    I
    of the
    Complaint.
    3.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    3
    of Count
    I of
    the Complaint.
    4.
    Respondent
    admits
    the
    allegations
    of Paragraph
    4 of
    Count
    I of the
    Complaint.
    5.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    5
    of Count
    I of
    the Complaint.
    6.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    6
    of Count
    I of
    the Complaint.
    7.
    Respondent
    admits
    the allegations
    of Paragraph
    7 of
    Count
    I
    of the
    Complaint.
    8.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    8 of
    Count
    I
    of the
    Complaint.

    9.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    9
    of
    Count
    I of
    the
    Complaint.
    10.
    Respondent
    lacks
    sufficient
    information
    as
    to
    the
    matters
    alleged
    in
    Paragraph
    10
    of
    Count
    I of
    the
    Complaint,
    and
    therefore
    denies
    same.
    11.
    Respondent
    lacks
    sufficient
    information
    as
    to
    the
    matters
    alleged
    in
    Paragraph
    12
    of
    Count
    I of
    the
    Complaint,
    and
    therefore
    denies
    same.
    12.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    12 of
    Count
    I of
    the
    Complaint.
    13.
    Respondent
    denies
    the
    allegations
    of
    Paragraph
    13
    of
    Count
    I
    of
    the
    Complaint.
    14.
    Respondent
    lacks
    sufficient
    information
    as
    to
    the
    matters
    alleged
    in
    Paragraph
    14
    of
    Count
    I of
    the
    Complaint,
    and
    therefore
    denies
    same.
    15.
    Respondent
    lacks
    sufficient
    information
    as to
    the
    matters
    alleged
    in Paragraph
    15 of
    Count
    I
    of the
    Complaint,
    and
    therefore
    denies
    same.
    16.
    Respondent admits
    the
    allegations
    of Paragraph
    16
    of Count
    I
    of
    the
    Complaint.
    17.
    Respondent lacks
    sufficient
    information
    as
    to the
    matters
    alleged
    in
    Paragraph
    17
    of
    Count
    I
    of
    the
    Complaint,
    and
    therefore
    denies
    same.
    18.
    Respondent
    lacks
    sufficient
    information
    as to
    the
    matters
    alleged
    in
    Paragraph
    18
    of
    Count
    I
    of
    the
    Complaint,
    and
    therefore
    denies
    same.
    19.
    Respondent admits
    receiving
    a Violation
    Notice
    from
    the
    Illinois
    EPA.
    Respondent
    denies all the
    remaining
    matters
    alleged
    in Paragraph
    19
    of Count
    I of
    the
    Complaint.
    20.
    Respondent
    admits
    receiving
    a
    Notice
    of
    Intent
    to
    Pursue
    Legal
    Action
    from
    the
    Illinois
    EPA
    and
    a
    meeting
    with
    the
    Illinois
    EPA
    on
    March
    2, 2005.
    Respondent
    denies
    all
    the
    remaining
    matters
    alleged
    in
    Paragraph
    20
    of Count
    I of
    the
    Complaint.
    -2-

    21.
    Respondent admits the allegations
    of Paragraph 21
    of Count I of the
    Complaint.
    22.
    Respondent lacks sufficient
    information as to the
    matters alleged in
    Paragraph 22
    of
    Count
    I
    of the Complaint, and
    therefore denies
    same.
    23.
    Respondent lacks sufficient information
    as
    to
    the
    matters alleged in
    Paragraph
    23 of
    Count I of
    the Complaint,
    and therefore
    denies same.
    24.
    Respondent lacks sufficient
    information as to
    the matters alleged
    in Paragraph
    24 of
    Count I of the
    Complaint,
    and therefore
    denies same.
    WHEREFORE, the Respondent,
    J. B. Timmermann Farms, Ltd.,
    respectfully requests
    that the Board enter an Order dismissing
    Count I
    of
    the Complaint
    with prejudice
    and further
    ordering
    Complainant to
    pay Respondent’s costs and fees.
    COUNT II
    COMES
    NOW the Respondent,
    J. B. Timmermann Farms,
    Ltd., by and through
    its
    attorney, James
    Richard Myers ofLeFevre
    Oldfield Myers Apke & Payne Law
    Group, Ltd., and
    for its
    Answer
    to
    the
    allegations of Count
    II of the Complaint filed against it states:
    1-22.
    Respondent reanswers and incorporates
    herein by reference its answers to
    Paragraphs
    1 to
    22 of Count I as its answers to Paragraphs
    1 to
    22
    of Count II of the
    Complaint.
    23.
    Respondent
    admits the allegations
    of Paragraph 23
    of
    Count
    II of the Complaint.
    24.
    Respondent admits the
    allegations of Paragraph 24
    of Count II of the Complaint.
    25.
    Respondent admits the allegations
    of Paragraph 25 of Count II of the Complaint.
    26.
    Respondent denies the allegations
    of Paragraph 26 of Count II
    of the Complaint.
    -3-

    WHEREFORE,
    the Respondent,
    J. B. Timmermann
    Farms,
    Ltd.,
    respectfully requests
    that
    the Board
    enter
    an Order
    dismissing
    Count
    II of
    the Complaint
    with
    prejudice and further
    ordering
    Complainant
    to pay Respondent’s
    costs
    and fees.
    COUNT
    III
    COMES
    NOW the
    Respondent,
    J.
    B.
    Timmermann Farms,
    Ltd., by and through
    its
    attorney, James
    Richard Myers
    ofLeFevre Oldfield
    Myers
    Apke
    &
    Payne Law Group,
    Ltd.,
    and
    for its
    Answer to the
    allegations of Count
    III of the Complaint
    filed against
    it states:
    1-22.
    Respondent
    reanswers and
    incorporates herein
    by reference
    its answers to Paragraphs
    1 to
    22
    of
    Count I as
    its
    answers
    to
    Paragraphs 1 to
    22
    of Count
    III
    of the Complaint.
    23.
    Respondent
    denies the
    allegations
    of Paragraph
    23
    of
    Count III of the
    Complaint.
    24.
    Respondent
    admits
    the allegations
    of Paragraph
    24 of
    Count
    III
    of the Complaint.
    25.
    Respondent
    admits
    the
    allegations
    of
    Paragraph
    25 of Count III of the
    Complaint.
    26.
    Respondent
    denies
    the
    allegations
    of Paragraph
    26 of
    Count
    III of the Complaint.
    WHEREFORE,
    the Respondent,
    J. B.
    Timmermann
    Farms,
    Ltd.,
    respectfully
    requests
    that
    the
    Board enter an
    Order dismissing
    Count
    III of
    the Complaint
    with
    prejudice
    and further
    ordering
    Complainant
    to pay
    Respondent’s costs
    and
    fees.
    -4-

    AFFIRMATIVE
    DEFENSES TO
    ALL COUNTS
    AFFIRMATIVE DEFENSE
    NUMBER 1- ACT
    OF GOD
    COMES NOW the Respondent,
    J. B. Timmermann Farms,
    Ltd.,
    by
    and
    through its
    attorney, James Richard Myers ofLeFevre
    Oldfield Myers Apke
    & Payne Law
    Group, Ltd., and
    for its Affirmative
    Defense
    Number 1 to all
    Counts of the Complaint
    filed against it
    states:
    1.
    The lagoon
    overflow
    referenced in
    the Complaint occurred
    subsequent
    to a
    unusually
    heavy rainfall.
    2.
    Rainfall is an act of God,
    not within the control of the Respondent.
    WHEREFORE, the Respondent,
    J. B. Timmermann Farms, Ltd., respectfully
    requests
    that the Board enter an Order dismissing
    the Complaint
    with
    prejudice and further
    ordering
    Complainant to pay
    Respondent’s
    costs and fees.
    AFFIRMATIVE DEFENSE NUMBER
    2- THIRD PARTY INTERVENTION
    COMES
    NOW the Respondent,
    J. B. Timmermann Farms, Ltd.,
    by
    and
    through its
    attorney,
    James
    Richard Myers ofLeFevre Oldfield
    Myers Apke & Payne Law Group, Ltd.,
    and
    for its
    Affirmative Defense Number 2
    to all Counts of
    the
    Complaint filed against it states:
    1.
    The
    lagoon overflow referenced in the Complaint occurred subsequent
    to a unusually
    heavy rainfall.
    2.
    Several other landowners in the area
    of
    Respondent have waste and water
    retention
    systems
    which failed at the same
    time
    as Respondent’s.
    WHEREFORE,
    the
    Respondent,
    J. B. Timmermann Farms, Ltd., respectfully requests
    -5-

    that
    the
    Board
    enter
    an
    Order
    dismissing
    the
    Complaint
    with
    prejudice
    and
    further
    ordering
    Complainant
    to
    pay
    Respondent’s
    costs
    and
    fees.
    AFFIRMATIVE
    DEFENSE
    NUMBER
    3-
    MITIGATION
    COMES
    NOW
    the
    Respondent,
    J.
    B.
    Timmermann
    Farms,
    Ltd.,
    by
    and
    through
    its
    attorney,
    James
    Richard
    Myers
    ofLeFevre
    Oldfield Myers
    Apke &
    Payne Law
    Group,
    Ltd.,
    and
    for
    its
    Affirmative
    Defense
    Number
    3
    to
    all
    Counts
    of
    the
    Complaint
    filed
    against
    it
    states:
    1.
    The
    lagoon
    overflow
    referenced
    in
    the
    Complaint
    occurred
    subsequent
    to
    a
    unusually
    heavy
    rainfall.
    2.
    Respondent
    has
    acted
    with
    all
    due
    attentiveness
    and
    speed to
    rectify the
    situation
    and
    to
    prevent
    further
    overflows
    of
    its
    lagoon
    at
    its
    significant
    cost
    and
    expense.
    WHEREFORE,
    the
    Respondent,
    J.
    B.
    Timmermann
    Farms,
    Ltd.,
    respectfully
    requests
    that
    the
    Board
    enter
    an
    Order
    dismissing
    the
    Complaint
    with
    prejudice
    and
    further
    ordering
    Complainant
    to
    pay
    Respondent’s
    costs
    and
    fees.
    Dated:
    1bP)—
    ic
    ,
    2008
    J.
    B.
    1ThIMERMANN
    FARMS, LTD.
    By:A5T
    By:
    Jams/Rfar
    yers,
    its
    Attorney
    James
    Richard
    Myers
    Reg.
    No.
    06225705
    Attorney
    for
    J.
    B.
    Timmermann
    Farms,
    Ltd.
    LeFevre
    Oldfield
    Myers
    Apke
    &
    Payne
    Law
    Group,
    Ltd.
    303
    S.
    Seventh
    St.,
    P.O.
    Box
    399
    Vandalia,
    IL
    62471
    Telephone:
    (618)
    283-3034
    Fax:
    (618)
    283-3037
    File
    #5753/9601
    -6-

    CERTIFICATE
    OF SERVICE
    I
    hereby
    certif,’ that I
    did on October
    15, 2008, send by
    U.S.
    mail, first
    class with postage
    thereon
    fully prepaid,
    by
    depositing
    in a
    United Stated Post
    Office Box a true and
    correct
    copy
    of the
    following
    instruments entitled
    NOTICE OF
    FILING and ANSWER
    TO
    COMPLAINT
    AND
    AFFIRMATIVE
    DEFENSES
    Andrew
    J.
    Nicholas
    Assistant
    Attorney
    General
    State of
    Illinois
    Attorney
    General of the State
    of Illinois
    500
    South Second Street
    Springfield,
    IL 62706
    and the original
    and ten copies
    of the Notice
    of filing by
    First
    Class Mail
    with postage
    thereon
    fully
    prepaid
    of the same
    foregoing instrument(s):
    John T.
    Therriault, Assistant
    Clerk
    Illinois
    Pollution
    Control Board
    James
    R. Thompson
    Center
    100
    West Randolph,
    Suite 11-500
    Chicago,
    Illinois 60601
    A
    copy
    of
    the Notice
    of
    Filing was
    also sent by First
    Class
    Mail
    with postage
    thereon fully
    prepaid to:
    Carol Webb
    Hearing
    Officer
    Illinois
    Pollution
    Control
    Board
    1021
    North Grand
    Avenue
    East
    Springfield,
    IL
    62794
    J.
    Otto

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