BEFORE THE ILLINOIS
POLLUTION CONTROL
BOARD
PEOPLE OF
THE
STATE
OF
)
ILLINOIS,
)
OFFICE
iAN
022009
Complainant,
)
OATEOF,W
OJIUtjOfl
c
,.
‘‘i’S
VS.
)
PCB No.
07-70
°flirol
)
(Enforcement - Water)
J.
B. TIMMERMANN
FARMS, LTD.,
)
an
Illinois
corporation,
Respondent.
NOTICE OF FILING
To:
James Richard Myers
LeFevre Oldfield Myers Apke & Payne Law Group, Ltd.
303 S. Seventh St., P.O. Box 399
Vandalia, IL 62471
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control
Board of
the
State of Illinois, COMPLAINANT’S REPLY
IN
SUPPORT OF ITS MOTION
TO STRIKE
RESPONDENT’S AFFIRMATIVE DEFENSES, copies of which are attached hereto
and
herewith served upon you.
Respectfully
submitted,
PEOPLE
OF THE STATE OF
ILLINOIS
LISA MADIGAN,
Attorney General of the
State of
Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:____________
ANDREW1.
NICHOLAS
Assistant Attorney General
Environmental
Bureau
Attorney
ID.
#6285057
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated: December 29, 2008
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
°FF’CE
OF
PEOPLE
ILLINOIS,
OF THE
STATE
))
;zoi
s
JAN
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O2fJQQ
ILLINO,
8
)
0
fltroI9
0,
Complainant,
)
)
V.
)
PCB
No. 07-70
)
(Enforcement - Water)
J. B. TIMMERMANN FARMS, LTD.
)
an Illinois
corporation,
)
)
Respondent.
)
COMPLAINANT’S REPLY IN SUPPORT
OF
ITS
MOTION TO
STRIKE RESPONDENT’S AFFIRMATIVE
DEFENSES
The
PEOPLE OF THE STATE OF ILLINOIS,ex rel. LISA MADIGAN, Attorney
General
of the State of Illinois,
hereby
replies in support of its Motion
to
Strike
Respondent’s
Affirmative Defenses.
In support of this Reply, the Complainant states as follows:
I.
INTRODUCTION
On
October 15, 2008, the
Respondent raised the following Affirmative Defenses
in its
Answer to
Complainant’s Complaint:
1)
Act of God - The lagoon
overflow referenced in the Complaint
occurred
subsequent to a
unusually heavy rainfall. Rainfall
is an act of God, not within
the
control of the
Respondent.
2)
Third-Party
Intervention - The lagoon overflow
referenced
in
the Complaint
occurred subsequent to a
unusually heavy rainfall. Several
other landowners
in
the area of Respondent have
waste and water retention
systems which failed
at the
same time as Respondent’s.
3)
Mitigation - The lagoon
overflow referenced in the Complaint
occurred
subsequent to a unusually
heavy rainfall. Respondent
has acted with all due
attentiveness and speed to
rectif’ the situation and
to prevent further overflows
of
its lagoon at its
significant
cost
and
expense.
The Respondent’s
Affirmative
Defenses
are
both
factually
and legally
insufficient
and,
therefore,
should
be
stricken.
II. ARGUMENT
A.
Respondent’s
Affirmative
Defenses
are
Factually
Insufficient
The
Respondent
does
not
plead sufficient
facts
to support
its Affirmative
Defenses.
Facts
establishing
an affirmative
defense
must be pled
specifically,
in
the
same
manner
as
facts
in
a
complaint.
Int’l
Ins. Co.
v.
Sargent
& Lundy,
242
Ill.
App. 3d
614, 609 N.E.2d
842,
853
(1St
Dist.
1993).
In Int’l
Ins. Co.,
an insurer
sued its insured
for rescission
of
a
policy
and
restitution
for
money paid.
Int’l
Ins. Co.,
609
N.E.2d
at 844-845.
The defendant
included
ten affirmative
defenses in
its answer.
While
the
appellate
court
later allowed
nine
of the ten
defenses
to
stand,
it held
that facts
establishing
an
affirmative
defense
must be pleaded
with the same
degree
of
specificity
required
by a plaintiff
to
establish
a cause
of
action. Id.
at
853.
The court
did,
however,
dismiss
the
defendant’s
affirmative
defense of
“unclean hands.”
It reasoned
that the
defendant
merely
alleged
plaintiffs
conduct was
unconscionable
and tainted
with
bad
faith.
Id.
at 856.
It
found this
affirmative
defense
to be
totally conclusory
in
nature and
did
not
include
any
specific
facts to
support its
conclusion.
Id.
In
this
case,
the
Respondent
admits
that its
Affirmative
Defenses
are
lacking
in detail.
(See Resp’t[s]
Resp.
to Mot.
to
Strike,
¶
2,
attached
as Exhibit
A).
It
argues, however,
that
these
are
issues
for
discovery.
The
law
in Illinois
is clear;
facts
included
in pleadings
must
be specific.
As
in
the
affirmative
defense
of unclean
hands
in Int’l Ins.
Co.,
the Respondent’s
Affirmative
Defenses
do not include
sufficient
facts.
Furthermore,
the
Respondent
does not
need
2
discovery
to provide the
necessary
details. For
example,
rather
than
concluding
there was
an
Act
of
God, e.g., heavy
rainfall,
Affirmative
Defense
#1
could
easily be
supported
with
information
such as; when
it rained, how
long it
rained
or
how much
rainfall
was
received. Rather
than
concluding
that the neighbors
also
experienced
system
overflows,
Affirmative
Defense #2
could
easily
be
supported with more
specific facts
to
show
how
many
neighbors
were affected and
where
they are located
in relation
to the Respondent’s
property. Rather
than concluding
that the
Respondent has
made repairs
to its property, Affirmative
Defense
#3 could
easily
be supported
with
information
that shows
what work was
done, or where
and
when it
was done. This is
information that is
available only
to the Respondent.
Therefore,
Respondent’s
Affirmative
Defenses
are
totally
conclusory
in nature and devoid
of specific
facts to support their
conclusions.
B.
Respondent’s
Affirmative
Defenses are Legally
Insufficient
Respondent’s
Affirmative Defenses
are legally insufficient.
A
proper affirmative defense
admits
the
legal
sufficiency of
a
cause of action
but then asserts new
matter which is capable
of
defeating a
plaintiff’s right
to recover.
Vroegh
v. J& MForklifl,
165 Ill.2d 523, 651
N,E.2d
121,
125-126 (1995).
See
also
Pryweller
v.
Cohen,
282
Ill. App.
3d 899, 668 N.E.2d
1144
(1St
Dist.
1996)
(affirmative
defenses
must offer facts
which
are
capable of negating
the alleged
cause
of
action).
In this
case, the Respondent
argues that its
Affirmative Defenses
are legally relevant.
(See Resp’t[s]
Resp.
to
Mot.
to
Strike,
¶
2, attached as Exhibit
A). Relevancy
is an evidentiary
standard used
at trial. In
re Stephen
K, 373
Ill.
App. 3d
7,
867 N.E.2d
81, 101
(1St
Dist. 2007).
Respondent’s
Affirmative
Defenses will
be
evaluated
on whether they are capable
of defeating
3
Complainant’s
claims,
not
on whether
they
are admissible
at trial.
Respondent’s
Affirmative
Defenses
do not
meet
this standard
for
the following
reasons:
First, in Illinois,
the
“Act of
God” defense
is
not a
defense
against water
pollution
claims
brought
under
Section 12
of the Illinois
Environmental
Protection
Act
(“Act”),
415
ILCS 5/12
(2006).
See Perkinson
v.
Illinois
Pollution
Control
Board,
187
Iii. App. 3d
689, 543 N.E.2d
901,
904
(3rd Dist.
1989),
citing Freeman
Coal Mining
Corp.
v. Illinois
Pollution
Control Board
(5th
Dist. 1974).
The
Freemam
Court ruled
it was
no defense
that the discharges
were
accidental
or
unintentional
or that
they
were the
result
of an “Act
of
God”
beyond the
Defendant’s
control.
The
fact that
there
was
an
unusually
heavy
rainfall
does
not
provide
new
facts
capable of
defeating
this cause
of
action.
Second, Section
12(a)
of the Act
provides
that
no
person shall
cause or
allow water
pollution
“either
alone
or in combination
with
matter
from
other sources.”
415
ILCS 5/12(a)
(2006).
It
does
not
matter
whether
the Respondent’s
neighbors
contributed
to the
discharge.
The
legal
issue
is
whether the
Respondent
caused
or allowed
the discharge.
Asserting
there was
discharge
from
the Respondent’s
neighbors
does not offer
new
information
that
is
capable of
defeating
the Complaint.
Finally,
Section
33(a)
of
the
Act, states:
“It
shall not
be a
defense to
findings of
violations
of the
provisions
of the Act
or
Board
regulations....that
the
person
has come
into
compliance
subsequent
to
the
violation.”
415 ILCS
5/33(a)
(2006). The
fact that
the Respondent
claims it
has
worked to
rectify
the situation
is not a
defense
to liability.
In its
Response,
Respondent
correctly
notes
that a
number
of factors
may
be considered
by
the Court
when making
a
penalty
determination,
however,
Complainant’s
Motion
only
attacks the
sufficiency
of Respondent’s
4
Affirmative
Defenses,
it
does not
raise the issue of penalty.
Therefore,
Respondent’s
Affirmative Defenses are
legally
insufficient.
IlL
CONCLUSION
The Respondent’s Affirmative Defenses are both factually and legally
insufficient.
Therefore,
they
should be stricken pursuant
to
Section 2-615 of
the Illinois
Code
of Civil
Procedure,
735
ILCS 5/2-615 (2007).
WHEREFORE, the Complainant, PEOPLE OF THE
STATE
OF
ILLINOIS, respectfully
requests that the
Board enter an order striking the Respondent’s
Affirmative Defenses and
granting any other relief it deems
appropriate.
Respectfully submitted,
PEOPLE OF THE
STATE
OF
ILLINOIS
ex rel. LISA MADIGAN
Attorney General
of the State of
Illinois
MATTHEW J. DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:________
ANDREW
i
NICHOLAS
Assistant Attorney
General
Environmental Bureau
500
South Second
Street
Springfield,
Illinois 62706
217/557-9457
Dated:
c2
5
CERTIFICATE OF SERVICE
I hereby certify that I did on December
29, 2008, send by U.S. mail, first class with
postage thereon fully prepaid,
by depositing in
a
United States Post Office
Box a
true and
correct
copy of the
following
instruments entitled
NOTICE
OF
FILING, COMPLAINANT’S
REPLY IN SUPPORT
OF
ITS
MOTION TO STRIKE RESPONDENT’S AFFIRMATIVE
DEFENSES
To:
James Richard Myers
LeFevre Oldfield Myers Apke
&
Payne Law Group, Ltd.
303 5.
Seventh
St.,
P.O. Box
399
Vandalia,
IL 62471
and the
original
and
ten
copies of the Notice of FiUng by First Class Mail with postage
thereon
fully prepaid of the same
foregoing instrument(s):
To:
John T. Therriault,
Assistant Clerk
Illinois Pollution Control
Board
James R.
Thompson Center
Suite 11-500
100 West
Randolph
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
Andrew J. NicI’olas
Assistant Attorney General
This
filing is submitted on recycled paper.