ILLINOIS POLLUTION CONTROL BOARD

February 19, 2009

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

J.B. TIMMERMANN FARMS, LTD.,

Respondent.

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PCB 07-70

(Enforcement - Water)

ORDER OF THE BOARD (by G.T. Girard):

The People of the State of Illinois (People) filed a motion to strike affirmative defenses

filed by J.B. Timmermann Farms, LTD (respondent). The Board grants the motion and strikes

the affirmative defenses. The following order begins with the procedural background, followed

by relevant statutory and regulatory provisions. The order then summarizes the affirmative

defenses and the motion to strike. Finally, the order sets forth the Board discussion and findings

regarding the arguments.

BACKGROUND

On January 29, 2007, the People filed a three-count complaint (Comp.) against

respondent. On February 1, 2007, the Board accepted the complaint for hearing. On October 17,

2008, respondent filed an answer and affirmative defenses (Answer) to the three-count

complaint. Respondent set forth three affirmative defenses in the answer.

See

Answer at 5-6.

On October 29, 2008, the People filed a motion to strike affirmative defenses (Mot.). On

December 17, 2009, respondent filed a response (Resp.) to the motion to strike. On December

24, 2008, the People filed a reply (Reply).

The complaint concerns respondent’s dairy operation that houses approximately 675

milking cows, located on the north side of Highline Road, in Section 28 of Breese Township,

Clinton County. Count I of the complaint alleges that respondent violated Section 12(a) of the

Environmental Protection Act (Act) (415 ILCS 5/12(a) (2006)) and Section 302.203 of the

Board’s regulations, 35 Ill. Adm. Code 302.203. Comp. at 5. Count I alleges that respondent

violated these provisions by allowing a livestock waste lagoon to overflow into Shoal Creek.

Id

.

Count II alleges that respondent violated Section 12(f) of the Act (415 ILCS 5/12(f)

(2006)) and Section 309.102(a) of the Board’s regulations, 35 Ill. Adm. Code 309.102(a). Comp

at 6. Count II alleges that respondent violated these provisions because respondent did not have

a National Pollutant Discharge Elimination System (NPDES) permit for the site.

Id

.

Count III alleges that respondents violated Section 12(d) of the Act (415 ILCS 5/12(d)

(2006)). Comp. at 8. Count III alleges that respondent violated Section 12(d) by depositing

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contaminants on land in a manner that created a water pollution hazard because respondent failed

to keep livestock waste levels at adequate levels to prevent excessive outside surface water flow.

Id.

LEGAL BACKGROUND ON AFFIRMATIVE DEFENSES

The Board’s procedural rules provide that “any facts constituting an affirmative defense

must be plainly set forth before hearing in the answer or in a supplemental answer, unless the

affirmative defense could not have been known before hearing.” 35 Ill. Adm. Code 103.204(d).

If a pleading does not admit the opposing party’s claim, but instead attacks the sufficiency of that

claim, it is not an affirmative defense. Worner Agency v. Doyle

,

121 Ill. App. 3d 219, 222-23,

459 N.E.2d 633, 636 (4th Dist. 1984). In a valid affirmative defense, the respondent alleges

“new facts or arguments that, if true, will defeat . . . the government’s claim even if all

allegations in the complaint are true.” People v. Community Landfill Co., PCB 97-193, slip op.

at 3 (Aug. 6, 1998). The Board has also defined an affirmative defense as a “response to a

plaintiff’s claim which attacks the plaintiff’s legal right to bring an action, as opposed to

attacking the truth of claim.” Farmer’s State Bank v. Phillips Petroleum Co., PCB 97-100, slip

op. at 2 n.1 (Jan. 23, 1997) (quoting

Black’s Law Dictionary

). Furthermore, “[t]he Board has

previously held that affirmative defenses that concern factors in mitigation are not an appropriate

affirmative defense to a claim that a violation has occurred.” People v. Texaco Refining and

Marketing, Inc., PCB 02-3, slip op. at 5 (Nov. 6, 2003); citing People v. Geon Co., Inc., PCB 97-

62 (Oct. 2, 1997); People v. Midwest Grain Products of Illinois, Inc., PCB 97-179 (Aug. 21,

1997).

Waters of the State shall be free from sludge or bottom deposits, floating debris,

visible oil, odor, plant or algal growth, color or turbidity of other than natural

STATUTORY AND REGULATORY BACKGROUND

Section 12 of the Act provides that no person shall:

(a)

Cause or threaten or allow the discharge of any contaminants into the

environment in any State so as to cause or tend to cause water pollution in

Illinois, either alone or in combination with matter from other sources, or

so as to violate regulations or standards adopted by the Pollution Control

Board under this Act

(d)

Deposit any contaminants upon the land in such place and manner so as to

create a water pollution hazard.

(f)

Cause, threaten or allow the discharge of any contaminant into the waters

of the State, as defined herein, including but not limited to, waters to any

sewage works, or into any well or from any point source within the State,

without an NPDES permit for point source discharges issued by the

Agency under Section 39(b) of this Act, . . .. 415 ILCS 5/12 (2006).

Section 302.203 of the Board’s regulations provides:

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origin. The allowed mixing provisions of Section 302.102 shall not be used to

comply with the provisions of this Section. 35 Ill. Adm. Code 302.203.

Section 309.102(a) provides:

Except as in compliance with the provisions of the Act, Board regulations, and the

CWA, and the provisions and conditions of the NPDES permit issued to the

discharger, the discharge of any contaminant or pollutant by any person into the

waters of the State from a point source or into a well shall be unlawful. 35 Ill.

Adm. Code 309.102(a).

AFFIRMATIVE DEFENSES

The respondent asserts three affirmative defenses in the answer. Answer at 5-6. First,

respondent asserts that the lagoon overflow occurred subsequent to a heavy rainfall. Answer at

5. Therefore, respondent argues the overflow was an “Act of God” and outside the control of

respondent.

Id

. Second, respondent claims that several other landowners in the area had water

and water retention systems fail at the same time as respondent.

Id

. Third, respondent alleges

that respondent has acted to rectify the situation and to prevent further overflows. Answer at 6.

The respondent argues that the affirmative defenses as plead are sufficient and the details

missing are issues for discovery. Resp. at 1. Respondent maintains that the affirmative defenses

are legally relevant as the complaint seeks a civil penalty. Resp. at 1. Respondent states that the

affirmative defense are “relevant and material to the issue of possible imposition of a penalty” if

a violation is found. Resp. at 2.

MOTION TO STRIKE

The People argue that the affirmative defenses should be stricken as the defenses are not

factually sufficient. Mot. at 1. For example, the People argue that respondent merely states that

there was an unusually heavy rainfall, but does not plead when, for how long, or even how much

rain was received. Mot. at 3. The People further maintain that the respondent gives no factual

detail about the neighbors’ overflows or how those would defeat the claims against respondent.

Id

. The People also claim that respondent gives no facts on what work was done or when. Mot.

at 4.

The People opine that the law in Illinois is clear that the facts in the pleadings must be

specific. Reply at 2, citing Int’l Ins. Co. v. Sargent & Lundy

The People also assert that the affirmative defenses must be struck as the defenses are

legally insufficient. Mot. at 4. More specifically, the People maintain that “Act of God” is not a

defense against water pollution.

Id

., citing

, 242 Ill. App. 3d 614, 609 N.E.2d

842, 853 (1st Dist. 1993). The People argue that respondent’s affirmative defenses are lacking in

detail and the facts plead are insufficient. Reply at 2.

Perkinson v. PCB, 187 Ill. App. 3d 689, 543 N.E.2d

901, 904 (3rd Dist. 1989); Freeman Coal Mining Corp. v. PCB, 21 Ill. App. 3d 157, 313 N.E.2d

616 (5th Dist. 1974). The People state that the Freeman court ruled that accidents or “Acts of

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God” were not a defense to a discharge.

Id

. The People further state that unintentional

discharges are not a defense.

Id

. The People argue that to constitute a proper affirmative

defense, an allegation must be capable of defeating the complaint’s claim. Mot. at 5; Reply at 3.

As case law establishes that an “Act of God” is not defense, the People assert that the first

affirmative defense should be stricken.

Id

.

The People argue that the remaining affirmative defenses are also legally insufficient.

Mot. at 5-6. The People opine that the alleged facts that others also had problems and that

respondent has reached compliance do not alleviate the respondent’s legal obligations. Mot. at 6.

Therefore, the People maintain the affirmative defenses should be stricken.

Id

.

DISCUSSION

In Freeman, the court reiterates that the Act is “

malum prohibitum

, no proof of guilty

knowledge or

mens rea

is necessary to a finding of guilt.” Freeman, 313 N.E.2d 621, citing

Meadowlark Farms, Inc. v. PCB, 17 Ill. App. 3d 851, 308 N.E.2d 829 (5th Dist. 1974). The

Freeman court ruled that a defense that the discharges were accidental, unintentional, and

occurred despite the best efforts of the respondent were not defenses.

Id

. Freeman looked to

other cases for support of this decision and noted that even an “Act of God” was not a defense.

Freeman, 313 N.E.2d 621. The Perkinson court noted the decisions in both Freeman and

Meadowlark Farms in finding that the respondent had caused of allowed the pollution.

Perkinson, 543 N.E.2d 904.

Based on the pleadings and the case law, the Board finds that the affirmative defense

alleging an “Act of God” was responsible for the spill must be stricken. The Board and the

courts have long held that

mens rea

is not required to prove that a respondent “caused or

allowed” a violation of the Act (415 ILCS 5/12 (2006)). Therefore, the Board strikes the first

affirmative defense.

The Board has determined that an affirmative defense concerning factors in mitigation

with regard to any penalty that may be assessed in this matter, is not an appropriate affirmative

defense to a claim that a violation has occurred.

People v. Texaco Refining and Marketing, Inc.,

PCB 02-3, slip op. at 5 (Nov. 6, 2003); citing

People v. Geon Co., Inc., PCB 97-62 (Oct. 2, 1997)

People v. Midwest Grain Products of Illinois Inc., PCB 97-179, slip op. at 5(Aug, 21, 1997);

People v. Douglas Furniture of California, Inc., PCB 97-133, slip op. at 6(May 1, 1997). By

respondent’s own admission the remaining two affirmative defenses are pled because they are

“relevant and material to the issue of the possible imposition of a penalty” if the Board finds a

violation.

See

Resp. at 2. Therefore, the Board finds that the second and third affirmative

defenses must be stricken. The Board strikes the second and third affirmative defenses.

CONCLUSION

The Board strikes the three alleged affirmative defenses set forth by respondent in the

answer. None of the alleged defenses appropriately attack complainant’s legal right to bring an

action. Therefore the Board finds that all three alleged affirmative defenses are not proper

affirmative defenses and the defenses must be stricken.

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