BEFORE TH~

Complainant,

THE HIGHLANDS, LLC, an Illinois limited

liability corporation, MURPHY FARMS, INC.,

a/k/a

MURPHY FAMILY FARMS, a North

NOTICE OF FILING

To:

Mr. Jeffery W. Tock

Harrington, lock & Royse

201 W. Springfield Ave.

P.O. Box 1550

Champaign, IL 61824-1500

Mr. Charles M. Gering, Esq.

McDermott, Will & Emery

227 West Monroe Street

Chicago, IL 60606-5096

PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution

Control Board of the State of Illinois, RESPONSE TO RESPONDENT HIGHLANDS, LLC’S

MOTION FOR SUMMARY JUDGMENT ON COUNT I OF THE AMENDED COMPLAINT, a copy

of which is 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

500 South Second Street

Springfield, Illinois 62706

217/782-9031

Dated: July 25, 2003

Environmental Enforcement/Asbestos

Litigation Division

BY:

~

~

~JANE E. McB~lDE

Assistant Attorney General

Environmental Bureau

7

O

V.

REC~VED

CLERKS OFFICE

JUL 2 8 2003

STATE

OF ILLINOIS

Pollution Control Board

(Enforcement)

)

)

)

)

Respondents.

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CERTIFICATE OF SERVICE

I hereby certify that I did on July 25, 2003, send by First Class Mail, 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 and RESPONSE TO RESPONDENT

HIGHLANDS, LLC’S MOTION FOR SUMMARY JUDGMENT ON COUNT I OF THE AMENDED

COMPLAINT

To:

Mr. Jeffery W. Tock

Mr. Charles M. Gering, Esq.

Harrington, lock & Royse

McDermott, Will & Emery

201 W. Springfield Ave.

227 West Monroe Street

P.O. Box 1550

Chicago, IL 60606-5096

Champaign, IL 61824-1500

and the original and ten copies by First Class Mail with postage thereon fully prepaid of the

same foregoing instrument(s):

To:

Dorothy Gunn, Clerk

Illinois Pollution Control Board

State of Illinois Center

Suite 11-500

100 West Randolph

Chicago, Illinois 60601

A copy was also sent by First Class Mail with postage thereon fully prepaid

To:

Mr. Brad Halloran, Hearing Officer

Illinois Pollution Control Board

State of Illinois Center, Ste. 11-500

100 West Randolph

Chicago, IL 60601

~

E. McBride

Assistant Attorney General

This filing is submitted on recycled paper.

---

RECE~VE~

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CLERK’S OFFICE

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\II IM II

BEFORE THE ~

~

BOARD

JUL 2 82003

STATE OF ILLiNOIS

PEOPLE OF THE STATE OF ILLINOIS

)

Pollution Control Board

)

Complainant,

)

)

V.

)

PCB No. 00-104

)

(Enforcement)

THE HIGHLANDS, LLC, an Illinois limited

)

liability corporation, and MURPHY

)

FARMS, INC., (a division of MURPHY-

)

BROWN, LLC, a North Carolina limited

)

liability corporation, and SMITHFIELD

)

FOODS, INC., a Virginia corporation).

)

)

Respondents.

)

ON COUNT I OF THE AMENDED COMPLAINT

NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS,

ex rel

LISA

MADIGAN, Attorney General of the State of Illinois, and responds to Respondent Highlands,

LLC’s Motion for Summary Judgment on Count I of the Amended Complaint, as follows:

1.

On June 13, 2003, Respondent Highlands filed a Motion for Summary Judgment

on Count I of the Amended Complaint. In its motion, Respondent Highlands alleges that

Complainant is barred from bringing Count I of the Amended Complaint by the doctrine of

res

judicata

because Roy and Diane Kell are the only individuals named in the allegations and the

Kells have brought and settled an action for private nuisance as of March 11, 2002.

Respondent Highland’s motion also seeks relief from all allegations contained in Count I that

may be alleged to occur after March 11, 2002, based on the assertion that Roy and Diane Kell

have not complained of odors to the Highlands or the Illinois EPA since that date.

2.

The doctrine of

resjudicata

has been described by Illinois courts as follows:

The doctrine of

resjudicata,

briefly stated, is that a final judgment

rendered by a court of competent jurisdiction on the merits is

conclusive as to the rights of the parties and their privies, and, as

to them, constitutes an absolute bar to a subsequent action

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involving the same claim, demand or cause of action. Citation.

The doctrine of

resjudicata,

in all cases where the second suit is

upon the same cause of action and between the same parties or

their privies as the former action, extends not only to the

questions actually litigated and decided, but to all grounds of

recovery or defense which might have been presented. Citations.

When a former adjudication is relied upon as an absolute bar to a

subsequent action, the only questions to be determined are

whether the cause of action is the same in both proceedings,

whether the two actions are between the same parties or their

privies, whether the former adjudication was a final judgment or

decree upon the merits, and whether it was within the jurisdiction

of the court rendering it.

People v. Kidd,

398 III. 405, 408-09 (1947). More recently, in

People v. Progressive Land

Developers, Inc.,

151 III. 2d 294, 176 III. Dec. 874 (1992), the Illinois Supreme Court

summarized the three criteria as “(1) a final judgment on the merits rendered by a court of

competent jurisdiction; (2) an identity of cause of action; and (3) an identity of parties or their

privies.”

See

also

Low v. A & B Freight Line, Inc.,175

Ill. 2d 176, 180, 222 Ill. Dec. 80 (1997).

3.

The Illinois Pollution Control Board has applied the doctrine similarly:

Under the doctrine of

res judicata,

once a court decides a cause of action, it

cannot be retried between the same parties.

People v. Jersey Sanitation Corp.,

PCB 97-2, slip op. at 4 (April 4, 2002). The bar extends to what was actually

decided in the first action, as well as those matters that could have been decided

in that suit. See

River Bark, Inc. v. City of Highland Park,

184 III. 2d 290, 302,

703 N.E.2d 883, 889 (1998). In general,

resjudicata

applies when three

elements are present: (1) a final judgment on the merits rendered by a court of

competent jurisdiction; (2) an identity of the parties or their privies; and (3) an

identity of cause of action.

Jersey Sanitation,

PCB 97-2, slip op. at 4-5.

People v. Peabody Coal Company,

PCB 00-1 34, slip op. at 14 (June 5, 2003)

Determination as to whether or not there

is identity

of causes of action.

4.

In the case of

RiverPark, Inc. v. City of Highland Park,

184 III.2d 290, 310

(1998), 703 N.E.2d 883, the Illinois Supreme Court adopted the transactional test for the

determination as to whether or not there is an identity of causes of action. In order to determine

whether there is an identity of cause of action between the first and second suits under the

2

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transactional test, the Court must look to the facts that give rise to plaintiffs’ right of relief, not

simply to the facts which support the judgment in the first action.

Rein v. David A. Noyes &

Companyetal,

172 lll.2d 325, 338-339, 665 N.E.2d 1199.

5.

The matter of

Roy Kell and Dianne Kell v. The Highlands, LLC, and Murphy

Family Farms, Inc.,

Knox County Case No. 99 L 62, was a private nuisance suit brought by the

Kells against The Highlands and Murphy Family Farms. The elements of a private nuisance

suit include the following: Under Illinois law, in order to recover for private nuisance, plaintiffs

must show that there was substantial invasion of use and enjoyment of their land, and that

invasion was either negligent or intentional and unreasonable.

Sprague Farms, Inc. v.

Providian Corp.,

929 F. Supp. 1125,

In re Chicago Flood Litigation,

176 Ill.2d 179 (1997), 680

N.E.2d 265,

rehearing denied,

The relief sought in the Kells private suit included civil damages

and abatement of the nuisance. An applicant for injunction against an alleged nuisance must

show that injury is imminent, as well as that there is no adequate remedy at law.

Matter of

Chicago Rock Island and Pacific R. Co.,

756 F.2d 517. In an action to enjoin an alleged private

nuisance the trial court must balance harm done to plaintiffs against benefit cause by

defendant’s use of the land and the suitability of the use in that particular location.

Carroll v.

Hurst,

103 IIl.App.3d 984, 431 N.E.2d 1344. With regard to damages, measures with regard to

damages for a permanent nuisance is depreciation in the market value of the property injured.

Measure of damages for a temporary nuisance is the personal inconvenience, annoyance and

discomfort suffered on account of the nuisance.

Tamalunis v. City of Georgetown,

185

III.App.3d 173, 542 N.E.2d 402, appeal denied, 128 IlI.2d 672, 548 N.E.2d 1079. In order to be

considered a permanent nuisance, a structure which constitutes or causes a nuisance must be

lawful, for where such structure is unlawful a presumption arises~-that the force of law will be

brought to bear so as to eradicate the illegality.

O’Brien v. City of O’Falon,

80 lll.App.3d 841,

400 N.E.2d 456. Therefore, in the Kells private suit, Plaintiffs pled that the structure was in

3

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violation of the State’s air pollution provisions as well as the Board’s agriculture-related

regulations to meet the pleading requirements in support of its private nuisance suit. The

subject facility’s compliance with applicable law was relevant to the question of whether the

Plaintiffs were alleging temporary or permanent nuisance and also the allegation of negligence.

Nowhere in the prayers associated with the various counts did the Plaintiffs seek enforcement

of the Section 9(a) of the Illinois Environmental Protection Act, 415 ILCS 5/9(a), nor the Board’s

agriculture-related regulation found at 35 Ill. Adm. Code 501.402(3), or seek an injunction

based on violation of same.

6.

In the instant matter, the cause of action alleged in Count I is statutory air

pollution and violation of one of the Board’s agriculture-related regulations. The relief sought is

a finding that the Respondents have violated Section 9(a) of the Illinois Environmental

Protection Act, 415 ILCS 5/9(a) and the Board’s agriculture-related regulation found at 35 III.

Adm. Code 501.402(3), a cease and desist order from further violation of the Act and

regulations, and the assessment of a civil penalty based on the civil penalty provisions of the

Illinois Environmental Protection Act, found at Section 42 of the Act, 415 ILCS 5/42. The

assessment of such penalty is based upon the Section 42(h) factors, 415 ILCS 5/42(h). The

elements of the cause of action necessary to obtain the requested relief include the elements of

air pollution, as set forth formerly at Section 3.02 of the Illinois Environmental Protection Act,

and now Section 3.115 of the Act, 415 ILCS 5/3.115; the elements of Section 9(a) of the Act,

415 ILCS 5/9(a) and Section 33(c), 415 ILCS 5/33(c); the elements of 35 Ill. Adm. Code

501.402(3); and the criteria of Section 42(h). A whole body of case law exists pertinent to a

finding of violation of Section 9(a). This law is not applicable to a finding of private nuisance,

and the award of damages or abatement. The relief sought in the two causes of action is very

different. The Complainant in the instant matter is seeking a finding of violation of a state

statute and assessment of civil penalties payable to the State in trust, based specifically on a

4

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finding of violation. The Kells sought damages payable to themselves personally and

abatement of a temporary private nuisance specific to their personal circumstances.

7.

Attached to the affidavit of James Kammueller are exhibits that consist of

information from the files of the Illinois EPA regarding citizens complaints submitted and field

observations documented regarding odors emanating from this facility. These complaints

include complaints submitted and field observations made after and including January, 2002.

The citizen complaints and observations reported in Mr. Kammueller’s affidavit do not represent

the totality of the citizens complaints and observations submitted in this matter, but do provide a

representation of the complaints submitted. Therefore, as evidenced by the information

contained in and attached to Mr. Kammueller’s affidavit, there are genuine issues of fact

regarding the continuing allegations contained in Count I of the Amended Complaint.

II. Privity

of Parties

8.

In the instant case, the requisite privity between parties does not exist between

the Complainant and Roy and Dianne Kell.

9.

In the case of

Diversified Systems, Inc v. Boyd,

286 lIl.App.3d 911, 916 (4th Dist.

1997), the court took a close look at the concept of privity:

Privity is said to exist between parties who adequately represent the

same legal interests.

In re Marriage of Mesecher,

272 lll.App.3d 73, 76,

650 N..2d 294, 296 (1995) (no privity between Illinois Department of

Public Aid and custodial mother in action for past-due child support). The word

“privity” is not a precise one, and it is no longer used by the Restatement. The

Restatement asks instead whether the nonparty controls the presentation of the

case (Restatement (Second) of Judgments § 39 (1982)) or agrees to be bound

by the determination (Restatement (Second) of Judgments § 40 (1982)) or

whether the non-party is represented by a party (Restatement (Second) of

Judgments § 41(1982)). Representatives under the Restatement are restricted

to five specific categories: trustees, person authorized by the nonparty,

executors, authorized public officials, and class representatives designated by a

court. Restatement (Second) of Judgments § 41(1) (1982)).

A nonparty is subject to

resjudicata

effects of a suit only if its interests were adequately

5

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represented.

In re L&S Industries, Inc.

989 F.2d 929

(7th

Cir. 1993);

Mesecher,

272 III.App.3d

at 76, 208 lIl.Dec. at 839, 650 N.E.2d at 296, citing

Progressive Land Developers,

151 IlI.2d at

296, 176 III. Dec. at 879, 602 N.E.2d at 825. Id at 918.

10.

In the case of

In re Marriage of Mesecher,

272 III. App. 3d 73, 76-77 (4th Dist

1995), 650 N.E.2d 294, the court held:

Resjudicata

will not operate to preclude a subsequent suit unless there

is an identity of parties or privity.

(People ex rel. Burns v. Progressive Land

Developers, Inc.

(1992), 151 lll.2d 285, 296, 176 III. Dec. 874, 879, 602 N.E.2d

820, 825.) Privity exists “between parties who adequately represent the same

legal interests.”

(Progressive Land Developers, Inc.

(1992), 151 lII.2d at 296,

176 III. Dec. at 879, 602 N.E.2d at 825, quoting

Hartke v. Chicago Board of

Election Commissioners

(N.D.lll. 1986), 651 F. Supp. 86, 90.) “It is the identity

of interest that controls in determining privity, not the nominal identity of the

parties citation.”

Progressive Land Developers, Inc.,

151 III.2d at 296, 176

lll.Dec. at 880, 602 N.E.2d at 826.

Here, petitioner testified that although she appeared as a witness at prior

collection proceedings, those proceedings were initiated by the IDPA, through

the office of the State’s Attorney. The issue is therefore, whether the IDPA

adequately represented petitioner’s interests in these prior proceedings. We

hold that it did not. The separate parties claim separate monies. Petitioner

presented uncontroverted testimony that the IDPA sought only to recoup the

public aid monies it had expended; the IDPA was unconcerned with arrearages

accruing prior to petitioner’s receipt of public aid. Since the IDPA was not

interested in the recovery of all monies due, it was not an adequate advocate for

petitioner’s interests.

We find the case of

Department of Public Aid ex rel Stark v. Wheeler

(1993), 248 lll.App.3d 749, 188 III.Dec. 741, 618 N.E.2d 1311, to be instructive.

There, the IDPA brought suit to decide the paternity of twins and the liability of

the alleged father for support. Prior to the action initiated by the IDPA, the twins’

mother had filed a paternity suit against the same alleged father. The mother’s

suit had been dismissed with prejudice, which operated as an adjudication on the

merits.

(Wheeler,

248 IlI.App.3d at 750-51, 188 III. Dec. at 743, 618 N.E.2d at

1313.) The court held that the IDPA’s claim was not barred by

resjudicata,

because the IDPA was not in privity with the mother.

(Wheeler,

248 III.App.3d

at 751, 188 lll.Dec. at 743-44, 618 N.E.2d at 1313-14.) The court explained the

interests of public agencies providing aid to children are different from the

interests of the children’s caretakers. Wheeler, 248 III.App.3d at 751, 188

lll.Dec. at 744, 618 N.E.2d at 1314.

11.

Similar to the case of

In re Marriage of Mesecher,

272 III. App. 3d at 76-77, 650

N.E.2d 294, wherein the petitioner was a witness in the original case but later brought a case of

her own to recover monies owed specifically to her, in the instant matter Roy and Dianne Kell

6

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are witnesses in the State’s case, but filed a private matter to recover individual damages. And,

similar to the facts of the

Mesecher

case, in the instant case the State seeks “separate monies”

in the form of a civil penalties, that were neither sought nor available in the cause of action

brought by the Kells in their private nuisance suit.

12.

The State’s interest was not represented in the Kells’ matter. The State’s

interest in the instant matter is that of seeking a finding of violation of Section 9(a) of the Act,

415 ILCS 5/9(a), and 35 Ill. Adm. Code 501.402(3), of obtaining a cease and desist order that

most likely would consist of corrective actions taken at the facility so as to meet the

requirements of an order to cease and desist from violations of the Illinois Environmental

Protection Act and regulation promulgated thereunder, and a civil penalty. The Kells sought

damages for themselves, and abatement of the nuisance only to such extent as would address

their personal circumstances, which is all they would be entitled to under a private nuisance

cause of action. The Kells, by no means, could have represented nor did they represent the

State’s interest within the confines of their private nuisance suit. The State’s interests could not

be accommodated in a cause of action of private nuisance. The Kells’ sole interests in their

private nuisance case, were their individual damages and abatement specific to their individual

circumstance.

13.

It is the State’s understanding, although the actual settlement has been deemed

confidential and both the Highlands and Murphy Family Farms have refused to provide the

State with a copy of the settlement, that the Kells indeed received very individualized relief.

They received an award of damages, and they and their landlord agreed to vacate the premise

and raze the house. As is obvious from this settlement, the agreed “abatement” would only

serve the individual circumstances of the Kells and by no means were the interests of the State

either represented, served or accommodated in such a settlement.

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III.

Final Judgment

14.

Respondent contends that the settlement and dismissal obtained in the Kells’

private nuisance suit constitute a final judgment that meet the requirements of the first criteria

for a finding of the applicability of

resjudicata.

15.

In the case of

Elliott v. LRSL Enterprises, Inc.,

226 Ill.App.3d 724, 728 (2’~’Dist.

1992), 589 N.E.2d 1074, the court held:

A judgment is final for purposes of

resjudicata

if it terminates litigation on

the merits so that the only issue remaining is proceeding with its execution.

(Catlettv. Novak(1987),

116 lIl.2d 63, 68, 106 lll.Dec. 786, 506 N.E.2d 586.) It

is true that an agreed order neither constitutes a judicial determination of the

rights of the parties nor represents judgment of the court.

(Ad-Ex Inc. v. City of

Chicago

(1990), 207 Ill.App.3d 163, 177, 152 III Dec. 136, 565 N.E.2d 669.)

Instead, it is a recordation of the private agreement of the parties.

(Kandalepas

v. Economou

(1989), 191 Ill.App.3d 51, 53, 138 lIl.Dec. 329, 547 N.E.2d 496.)

However, an order entered by consent of the parties operates to the same extent

for purposes of

resjudicata

as a judgment entered after contest, because it is

conclusive with respect to the matters settled by the order, judgment, or decree.

(Barth v. Reagan

(1986), 146 lll.App.3d 1058, 1064, 100 lIl.Dec. 541, 497 N.E.2d

519.) Any other interpretation would effectually nullify all settlements because

the same claim would be subject to the possibility of future litigation and double

recovery.

An agreed order is considered a contract between the parties to the litigation.

Accordingly, its construction is governed by principles of contract law.

(Flora

Bank& Trusty. Czyzewski

(1991), 122 III.App.3d 382, 388, 164 lIl.Dec. 804, 583

N.E.2d 720;

Haisma v. Edgar(1991),

218 llI.App.3d 78, 87, 161 Ill.Dec. 36, 578

N.E.2d 163.)...

16.

In the case of

Ekkert v. City of Lake Forest,

225 llI.App.3d 702, 707, 588 N.E.2d

482, a case in which plaintiffs attempted to bar the action based upon a theory of collateral

estoppel which entailed much the same analysis as involved in a claim of

res judicata,

the court

included the following in its decision:

Finally, the Federal court ruling was based on the consent of the parties

to that case. The consent order states that the defendants denied that they had

enforced or observed section 16.06; it is thus quite possible (based on the

limited record that plaintiff provides) that the issue of whether section 16.06

8

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violates the Federal Act was never actually litigated. Generally, courts are

reluctant to give preclusive effect to consent judgments, in large measure

because the extent to which issues are actually litigated in suits ending in

consent judgments is often doubiful.

(La Preferida, Inc. v. Cen,eceria Modelo

S.A. de C.V.

(7th

Cir. 1990), 914 F.2d 900, 906;

Avondale Shipyards, inc. v.

Insured Lloyd’s

(5th

Cir. 1986), 786 F.2d 1265, 1272-73). The Federal consent

order does recite that section 16.06 violates the Federal Act. Whether the

defendants actually attempted to litigate this issue is unclear at best, and this

lack of clarity (along with the failure to establish identity of issues or identity of

the relevant parties) forbids giving the Federal consent order any preclusive

effect here.

17.

The basis of the resolution of the case of

Roy Kell and Dianne Kell v. The

Highlands, LLC, and Murphy Family Farms, Inc.,

Knox County Case No. 99 L 62, is a

settlement agreement that has not been made available to the State and has been deemed

“confidential”. As such it should only serve as the basis for a claim of

resjudicata

pertinent to a

claim of private nuisance regarding the actual parties to the original suit. To the State’s

knowledge, none of the issues of the private nuisance suit were litigated other than discovery

disputes. The discovery orders remained uncomplied with at the time the matter settled. Given

the fact that there is no identity of cause of action between the Kells’ private nuisance suit and

the instant matter, and in that none of the material allegations of the private suit were litigated,

the Board should follow the guidance provided by

Ekkert v. City of Lake Forest,

225 lll.App.3d

at 707, 588 N.E.2d 482, and exercise great reluctance in giving the private nuisance suit

settlement agreement preclusive effect in the instant matter. As described in the case of

Elliott

v. LRSL Enterprises, Inc.,

226 lll.App.3d at 728, 589 N.E.2d 1074, the agreement in the Knox

County private nuisance suit is of the nature of a contract between the parties in the suit and

that is how it should be treated in the instant matter — as a privately negotiated contract

concerning individual interests, negotiated and executed shrouded by a claim of confidentiality.

18.

Of significance is the fact that Roy and Dianne Kell have refused to talk to Illinois

EPA inspectors since the settlement was signed and entered. See the Affidavit of James

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Kammueller attached. They have refused to answer their door and they have failed to return

phone calls. This behavior raises questions as to what might be included within the terms of

this confidential agreement that now is being cited as a basis for a bar against all allegations

contained within Count I.

IV.

Relief Sought by Respondent’s Motion for Summary Judgment

19.

The prayer for relief at the conclusion of Respondent Highlands’ Motion for

Summary Judgment on Count I of the Amended Complaint, asks for two forms of relief based

on the theory that Complainant’s claims are barred by the doctrine of

res judicata,

and a third

form in the alternative. In its prayer, Respondent requested that:

A)

The Board determine that the Complainant is barred by the doctrine of

resjudicata

from pursuing any complaint against the Highlands arising

out of complaints by either Roy Kell and/or Dianne Kell or utilizing any

testimony by either Roy and/or Diane Kell in support of any alleged

violation of any statute or regulation pertaining to or applicable to odors,

whether past, present or future, originating from The Highlands hog

facility.

B)

The Board enter summary judgment in favor of The Highlands and

against the Complainant on Count I as a result of the Complainant being

barred by

resjudicata

from pursuing Count I as pled.

C)

In the alternative, if the relief requested above is denied, this Board enter

partial summary judgment in favor of The Highlands on Count I for that

period of time commencing March 11, 2002 forward for the reason that

either (a) no odor(s) that originated from The Highland has (have)

interfered with the Kells’ enjoyment of their life or property since March

10

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11, 2002 or (b) if there has been interference since the time, such

interference has not been unreasonable.

A.

Request that the Complainant be barred from pursuing allegations arisinq out of

complaints by either Roy Kell and/or Dianne Kell or utilizing testimony by either Roy

and/or Diane Kell in support of allegations of state statute and the Board’s requlations.

20.

Respondent’s request that the testimony of Roy and Dianne Kell be barred from

the State’s case is clearly a serious attempt to interfere with and impair the State’s right to

present its case. As set forth above, the State’s cause of action for and the State’s interest in

seeking relief in the form of a finding of violation of a state statute is wholly different and

independent of the Kells private nuisance cause of action. The causes of action are different,

there is no privity between the Kells and the State, and the final judgment considered to be the

basis of this claim of

resjudicata

is actually a settlement agreement and should not be given

preclusive effect. The three criteria or elements necessary for a finding that a matter is barred

by the doctrine of

resjudicata

are not present. Therefore, there is absolutely no basis to bar

the Complainant from pursuing allegations arising out of complaints by either Roy KeIl and/or

Dianne Kell nor is there any basis to bar the Complainant from utilizing testimony by either Roy

and/or Dianne Kell in support of alleged violation of any statute or regulation pertaining to or

applicable to odors, whether past, present or future, originating from The Highlands hog facility.

B.

Request that the Complainant be barred by

res judicata

from pursuing all of the

allegations contained within Count I of the Amended Complainant

21.

Based on the foregoing, set forth in paragraph 2 through 20 of this response,

there is clearly no basis for Respondent Highland’s assertion of the doctrine of

resjudicata.

11

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C.

Request that the Board enter partial summary judgment in favor of The Highlands on

Count I for that period of time commencing March 11, 2002 forward for the reason that

either (a) no odor(s) that originated from The Highland has (have) interfered with the

Kells’ enjoyment of their life or property since March 11, 2002 or (b) if there has been

interference since the time, such interference has not been unreasonable.

22.

This request for relief is essentially, if not exactly, the same as the request

contained in the request designated “A” above. It seeks summary judgment solely on the basis

of its claim of

resjudicata

with regard to the KelIs. As set forth in Paragraph 20 as cited in

Paragraph 21, there is clearly no basis for Respondent Highland’s assertion of the doctrine of

resjudicata.

In that

resjudicata

is not applicable to this matter, there is no basis for a finding of

summary judgment with regard to any testimony the Kells may provide regarding their

experiences since January 2002. As set forth in the Affidavit of James Kammueller, the Illinois

EPA has documentation of citizens complaints of odor emanating from the facility and

inspectors field observations of off-site odors that concern dates after March 11, 2002.

23.

Again, this request for relief, designated here as “C”, is an attempt to improperly

impair the State’s ability and right to present its case. It is apparent the Kells are already either

intimidated by the terms of the private nuisance case settlement, or misunderstand its

ramifications. The State has not yet attempted to subpoena them for a discovery or evidence

deposition to attempt to obtain information regarding the motivation for their behavior. The

Respondent cannot be allowed to interfere with the State’s witnesses to any greater degree

than it already has.

24.

Respondent has, in the affidavit of Doug Baird, set forth information regarding

Mr. Baird’s position pertinent to the Highland’s facility regarding the Section 33(c) factors. It

appears this was done because the only “people”, as the Respondent states, that were

identified in the Amended Complaint, were the Kells. This is not true. The Amended Complaint

references other complaining individuals, as well, but not by name. Respondents have been

provided copies of documentation concerning other neighbors who have filed complaints

12

---

regarding odor emanating from its facility and of field observations by Illinois EPA inspectors of

offensive odors emanating from the facility off-site of the property. Dating from the first

allegation of unreasonably offensive odors set forth in the Amended Complaint and continuing,

there have been ongoing complaints and observations of off-site odors that emanated from The

Highlands facility. See Affidavit of James Kammueller. As such, there are genuine issues of

material fact that odors from The Highlands have interfered with the life and enjoyment of

others.

25.

The second factor in the Section 33(c) analysis is the social and economic value

of the pollution source. It is the Complainant’s continuing position that The Highlands’ facility

can only be of economic and social value to the surrounding community, to the Highlands’

employees, and to the Highlands’ customers, if it is operated in a fashion that does not violate

Illinois environmental laws and regulations. By transmitting offensive odors off-site, The

Highlands is causing the neighbors to absorb the costs and consequences of the environmental

degradation caused by the hog facility. The attached Affidavit of James Kammueller is

accompanied by exhibits containing field observations of off-site odors made by Illinois EPA

inspectors and copies of neighboring residents documentation of odor events attributable to

odor emissions from The Highlands facility.

26.

The Highlands asserts in its Motion, in paragraph 25 on page 7, that there is no

social and economic value in closing The Highlands. The State alleges many alternatives to

closing the facility in the Amended Complaint, that entail the application of odor treatments.

Closing is only one alternative. This facility has the option of installing appropriate odor control

and continuing to operate. According to the information provided by Mr. Baird’s affidavit

attached to the Respondent’s motion, the facility paid salaries in the amount of $392, 716.00 in

2002. It has annual operating expenses of well over a million dollars. It is still in business, and

therefore must be making money sufficient to stay in business. Complainant has been

13

---

informed that since January 2003, the Highlands has housed hogs owned by the Maschhoff

family. The Illinois EPA files contain newspaper articles indicating that the Maschhoff family

has several sow facilities under its ownership and control and is considered a very successful

hog production concern. See Affidavit of James Kammueller. In that the Highlands and the

Maschhoffs both have an ownership interest in the production structures and animals that are

the source of the excrement that constitutes the waste which is the source of odor at this

facility, there are genuine issues of fact as to the social and economic value of this facility and

its ability to install appropriate odor control technology so as to be able to operate in compliance

with the State’s environmental statute and regulations. Therefore, there remain genuine issues

of fact regarding the second Section 33(c) factor.

27.

The third factor considered under Section 33(c) of the Act is the suitability or

unsuitability of the pollution source to the area in which it is located, including the question of

priority of location. In its motion, Respondent asserts information regarding local zoning, local

planned land use, and actual local land use in the vicinity of the Highlands facility. It is

Complainant’s position that the Highlands’ facility is not suitable to the site where it is located

because it was built with inadequate odor control in close proximity to its neighbors given its

capacity to produce and emit offensive odors. See Affidavit of James Kammueller. The facility

stores manure in an uncovered anaerobic lagoon system, and uses a large number of exhaust

fans to discharge odorous air from buildings and pits beneath the buildings to the surrounding

atmosphere. The facility as constructed, with inadequate odor control for the lagoon system

and buildings, is unlikely to prevent neighbors from experiencing odors at an intensity and

frequency that interfere with the enjoyment of their lives and properties. See Affidavit of James

Kammueller. Therefore, there remain genuine issues of fact regarding the third Section 33(c)

factor.

28.

The fourth factor under 33(c) is the technical practicability and economic

14

---

reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from

the pollution source. At the time of construction of the facility, alternative facility designs and

odor control technologies that are capable of preventing the release of odors to the extent

experienced during field inspections, were available and were economically reasonable and

technically feasible applications for this facility. See Affidavit of James Kammueller. Therefore,

there remain genuine issues of fact regarding the fourth Section 33(c) factor.

29.

The fifth Section 33(c) factor is the consideration of subsequent compliance.

Based on field observations by Illinois EPA staff, any compliance measures installed at the

facility have been inadequate in preventing unreasonable offensive off-site odors. See Affidavit

of Jim Kammueller. Therefore, there remain genuine issues of fact regarding the fifth Section

33(c) factor.

WHEREFORE, for the foregoing reasons and on the foregoing grounds, Complainant

respectfully requests that the Board deny Respondent The Highlands, LLC’s Motion for

Summary Judgment on Count I of the Amended Complaint.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS,

ex reL JAMES E. RYAN, Attorney General

of the State of Illinois

MATTHEW J. DUNN, Chief

Environmental Enforcement Division

BY:

_______________________

JANE E.MCBRIDE

Assistant Attorney General

500 South Second Street

Springfield, Illinois 62706

(217) 782-9031

15

---

RE CE ~V

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JUL 282003

STATE OF ILLINOIS

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AFFIDAVIT

I, JAMES E. KAMMUELLER, after being duly sworn and upon oath, state as follows:

1.

I am employed by the Illinois Environmental Protection Agency (“Illinois EPA”)

Bureau of Water Pollution Control -Field Operations Section, as manager of their Peoria

Regional Office.

2.

As part of my duties with the Illinois EPA, I perform site investigations to assess

whether environmental and/or public health threats exist. Upon formal request, I also review

pleadings to be filed by the Attorney General’s Office to ensure veracity and accuracy with

investigation records, evidence gathered, as well as my own personal observations and

knowledge.

3.

In my capacity as manager of the Bureau of Water Pollution Control-Field

Operations Section, Peoria Regional Office, I supervise all activities of the Bureau of Water

field operations conducted at the Illinois EPA Peoria Regional Office. These activities include

the investigation of wastewater discharge and release and odor air pollution complaints

regarding farm and agricultural sites and facilities. I have worked for the Illinois EPA as a field

inspector for over 33 years, and throughout that time have, been involved in field investigations

of environmental complaints concerning farms and agricultural facilities. I have personally

conducted and supervised investigation of complaints regarding and site inspections of The

Highlands. The custody of the Illinois EPA’s field file on this facility is maintained under my

supervision.

4.

The Illinois EPA field office file contains documentation of the following. In the

month of May 2001, Roy and Diane Kell, who are the neighbors who live 1/4 mile from the

facility, reported the occurrence of unreasonably offensive odors that interfered with the use

---

and enjoyment of their property and interfered with the enjoyment of life at their residence on

May 1,2,3,4,5,7,8,9, 10,11, 16, 17,19,21,22 and 23.

5.

On May 23, 2001, an Illinois EPA inspector met with the Kells at their residence

to discuss the repeated occurrence of unreasonably offensive odors with them. While the

inspector was interviewing the Kells in their home, the wind shifted, blowing from the direction

of the facility. Even though the doors and windows were closed, and the windows were sealed

and covered with plastic, the inspector experienced odors from the Highlands facility

penetrating the Kells’ home. See Exhibit A, attached hereto.

6.

The Illinois EPA field office file contains documentation of the following. In the

month of April 2001, the Kells reported the occurrence of unreasonably offensive odors that

interfered with the use and enjoyment of their property and interfered with the enjoyment of life

at their residence on April 1, 7, 8, 9, 12, 15, 18, 21, 23, 24 and 27.

7.

The Illinois EPA field office file contains documentation of the following. In the

month of March 2001, the Kells reported the occurrence of unreasonably offensive odors that

interfered with the use and enjoyment of their property and interfered with the enjoyment of life

at their residence on March 1, 2, 3, 7, 9, 12, 13, 14, 22, 23, 26, 27, and 31.

8.

In the month of May 2001, Jack and Del Leonard, 2195 Knox County Highway

11, Williamsfield, IL 61489, who are neighbors who live I mile north of the facility, reported the

occurrence of unreasonably offensive odors that interfered with the use and enjoyment of their

property and interfered with the enjoyment of life at their residence on May 1, 2, 3, 6, 8, 9, 10,

13, 14 and 22. See Group Exhibit B, attached hereto.

9.

In the month of April 2001, the Leonards reported the occurrence of

unreasonably offensive odors that interfered with the use and enjoyment of their property and

interfered with the enjoyment of life at their residence on April 6, 8, 9, 19, 20, 21, 22, 23, 26

2

---

and 30. See Group Exhibit B, attached hereto.

10.

On April 20, 21 and 28, 2001, an individual living ‘n the town of Williamsfield

reported very offensive hog odors from The Highlands facility that caused her to close

windows and otherwise modify her activities. This resident lives approximately 3 miles north of

the facility. On May 1, 2001, she also reported a very strong and offensive odor at her

residence coming from The Highlands facility. She stated that she cannot leave windows open

at her residence because of the strong and offensive odor from The Highlands facility. See

Exhibit C, attached hereto.

11.

On May 14, 2001, another resident of Williamsfield experienced a very offensive

odor at her residence coming from The Highlands facility that caused her to close up her

house. She also reported experiencing offensive odors approximately one and a half weeks

earlier coming from The Highlands facility that woke her husband during the night and forced

them to close windows at their residence to prevent the offensive odor from continuing to enter

their residence. See Group Exhibit D, attached hereto.

12.

The Illinois EPA field office file contains documentation of field observations of

off-site odors at this facility. A sample of this documentation is attached hereto as Group

Exhibit E. This sample of documentation includes a field observation of off-site odor on

November 13, 2002, June 25, 2002, June 19, 2002, February 7, 2002 and January 18, 2002,

as well as dates in 2001.

13.

Based on my 33 pIus years of training and professional experience, it is my

opinion that the Highlands’ facility is not suitable to the site where it is located because it was

built with inadequate odor control in close proximity to its neighbors given its capacity to

produce and emit offensive odors. The facility stores manure in an uncovered anaerobic

lagoon system, and uses a large number of exhaust fans to discharge odorous air from

3

---

buildings and pits beneath the buildings to the surrounding atmosphere. It is my opinion that

the facility as constructed, with inadequate odor control for the lagoon system and buildings is

unlikely to prevent neighbors from experiencing odors at an intensity and frequency that

interfere with the enjoyment of their lives and properties.

14.

Based on my 33 pIus years of training and professional experience, it is my

opinion, at the time of construction of The Highlands facility, alternative facility designs and

odor control technologies that are capable of preventing the release of odors to the extent

experienced during field inspections were available, and were economically reasonable and

technically feasible applications for this facility.

15.

Attached as Exhibit F are newspaper articles contained within the files of the

Illinois EPA field office regarding the Maschhoff family pork production company.

16.

Based on field observations by Illinois EPA staff, any compliance measures

implemented or installed at the facility have been inadequate in preventing unreasonably

offensive off-site odors.

17.

Roy and Dianne Kell have refused to talk to Illinois EPA inspectors since on or

about the time the settlement was signed and entered in their private nuisance lawsuit.

Further, Affiant sayeth not.

JAMES E. KAMMUELLER

Subscribed and sworn to before me

this _______ day of 9~4,, 2003.

~c9Y ~

NOTARY PUBLIC

OFFICIAL S~

---

MEMORANDUM

SUBJECT:

KNOX COUNTY

(Near Williamsfield)

Reconnaissance/Sampling Inspection

TO:

DWPCIFOS and RU

FROM:

Todd Huson, DWPC-FOS, Peoria Region

DATE:

May 23, 2001

On May 22, 2001, DWPC/FOS,

Peoria Field Office, received an odor complaint from

Roy and Diane Kell concerning the Highlands Sow Farm. Roy stated that they have had to

endure offensive odors from this facility almost every day in May.

On May 23, I performed an inspection in the area ofthe subject facility. I did not enter

this facility (I could not contact anyone at the Baird Seed Company Office). A relatively strong

off-site odor was observed downwind (east by northeast) of this swine production facility at the

Roy Kell residence. I visited with the Kells, and subsequently noticed that this odor penetrated

the walls oftheir home. The odor appeared to be a combination of anaerobic (septic) waste odor

and livestock odor. I also noticed that new air dams were being constructed at the east end of the

breeding and farrowing buildings (replacing the shallow straw bales dams).

trhl

‘CC:

Peoria Files

_________________________

Tim Kluge

Todd R. Huson

Jane McBride, IAGO

Rich Warrington, DLC

~~

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Affidavit of James Kammueller

Exhibit A

---

ADDRESS OF SOURCE:

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~~-~----

---

P’ease print and complete

as much information as possible

C’r.~~ssa~

b0~~

Illinois Environrnent2l Protection Agency

Citizen

Pollution Complaint

Name

•

•

~3

~

Ri~1 I~O

-

.

Address

~--i~

~/f-/~

City, State. Zip

-

•

-

Do you consent to Illinois EPA disclosing your

identity as complaining party?

~

Yes

C

No

Suspected or Known source:

~

i~~i~/11

Name

-

Address

~

City. State, Zip

Home T&ephone Number

~

Daytime Telephone Number

Cause of Problem: (check one)

Air

Pollutj~~

o Waste Handling

a Water Pollution

O Drinking Water

If you checked drinking

water, from which

utility do you receive

water?

—

Briefly describe problem ~

V~’

-

hô~

oQLM

D-

‘,~t

,~

e

E?~i~~z~

Time

-

If you remember specific times

~

when the problem occurred, please

list time of day and date

,4.1.,fli

Has this

~

p

~ectedyour

~

health?

o

Yes

~

No If so,

~49~/

please explain

fzz,~

Date

~-~p~oJ

/

—0,~

gr2 a’

~4J~W~L~

~

~

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cQ~

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Have you consulted a dcctcr? C Yes

No

L

-

Has the problem damaged your property? C Yes ~‘No

If so, describe your property damage

Affidavit of James Kammueller

Exhibit C

Do you hu’.’e photos, a written record

cr

other

evicence of pollution?

C

Yes ~No

Have you filed a claim

against the responsible party?

C

Yes

_1_fl C

Office Use Only

ID Number

‘~O9-,9~, •;~5

rje,tr

ori~ar

wrrri(2r1

fnr tF~ or

.i..-.

~—•

-

-r

---

IEPA

-

PEORIA REGION

-

DWPC

COMPLAINT RECEIVED

Knox County I

FILE:

Murphy

Family Farms,

Inc.

DATE/TIME RE~IVED:

5/1/01

4:33 PM

COMPLAINANT:

Mrs. Chris Hasselbacher

ADDRESS:

1383

Illinois Route 180

Williamsfield, IL 61489

TELEPHONE

11:

(309)

639-2225

home

639-2294

work

Complaint

via phone

NATURE’ OF COMPLAINT

& ACTION T.A1’~N:

SUSPECTED OR

KNOWN SOURCE:

1

I returned a call to complainant on 5/2/01. (This is apparently the first contact complainant

has had with this office.) Mrs. Hasselbacher reported a very strong and offensive odor at her

residence on May 1, 2001. She cannot leave windows open at her residence because ofthe

strong and offensive odor. Complainant stated that the odor is coming from Murphy Family

Farms, Inc. swine operation. Complainant’s residence is approximately 3 miles north ofthe -

swine facility. Mrs. Hasselbacher indicated that she has kept some written records of the dates

when the offensive odor from the swine facility was present at her residence. I advised her to

keep records and forwarded complaint forms.

cc:

—IEPA/DLC

-Jane McBride,

IAGO

-DWPC/FOS & RU

Signed

Murphy Family Farms, Inc./The Highlands, LLC

KnoxRoad 1100N

-

-

.

Williamsfield, IL 61489

a:\Iivestck\murphy\complt_37.O1

---

IEPA

PEORIA REGION

-

DWPC

COMPLAINT RECEIVED

_______

Knox

County

FILE:

Murphy Family Farms, Inc.

XX Complaint

_______________________________________________________________

via

phone

DATE/TIME RECEIVED:

I

5/15/01

9:11 AM~1

-

-

COMPLAINANT:

Mrs. Joyce Martin

ADDRESS:

227 Oak Street

TELEPHONE

#:

Williamsfield,

(309)

639-2606

IL 61489

SUSPECTED OR KNOWN SOURCE:

--

I

Murphy Family Farms, Inc./The Highlands, LLC

KnoxRoad 1100N

Williarnsfield, IL 61489

NATURE OF COMPLAINT & ACTION

TA~CE’N: ______________________

Mrs. Martin

reported a very offensive odor at her residential property in Williamsfield during

the previous evening, May 14, 2001. Mrs. Martin stated that the odor was coming from Murphy

Family Farms, Inc. swine facility located south ofWilliamsfield. Mrs. Martin was -forced to

close up her house because ofthe odor. She stated that she wanted to have the windows ofher

residence open and enjoy the fresh air but was not able to do so because ofthe very strong and

offensive odor from Murphy Family Farms, Inc. swine operation.

Complainant also reported very offensive odors at her residence approximately 1

V2

weeks

ago. According to Mrs. Martin the swine farm odor from Murphy Family Farms, Inc. was so

strong that it woke up her-husband during the night. He was forced to close the windows oftheir

residence to prevent the offensive odor from continuing to enter their residence. Mrs. Martin

reported that the terrible odor was still present the following morning and then again in the

evening. This resulted in terrible odors two consecutive nights according to Mrs. Martin.

Complainant was advised to maintain written records ofthe odor incidents.

2

~

7’

~-

Signed

cc:

-IEPA,

DLC

~

—‘.~~~--.-

-Jane

McBride,

IAGO

Affidavit of James Kammueller

DWPC/FOS

&

RU

Exhibit D

a:\livestck\murphy\complt_40.O!

---

cc:

J;~piE

/~t~

Facility Name/Odor Source:

Date ofOffensive Odor

I

Time

---

-

-

-

(approx.) -

Offensive Odor Log

o4e(c~

-

-0/

M.

7

-~

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~ 2/- ~/

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~

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~

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(~th-; /~2g~

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Name: -

tO

Signature:

(~

‘~—~~ii///

~

-4/

-

~

,—.-

4

‘

,~

~

-

--

~

--

a:\Iivestock\murphy\odorftml.O1

1

~

7~//J9’

Date: J-

3/— ~ /

Mail to:

IEPA

5415

N. University

Peoria, IL 61614

I-c--,,

7

//J(

Comments

‘(describe

odor, note

any impact on enjoyment of

property, i.e. unable to be outdoors,.need to close -windows, run AC,

--.

—

canceled event, etc., use additional paper ifneeded.)

---

Illinois Environmental ProtectionAgency

Field Report

File:

Murphy-Family Farms

The Highlands, LLC

, Inc.!

~

-

~

County:

Knox

Date:

November 13, 2002

Near:

Williamsfield

To:

DWPCIFOS&RU

Synopsis/Narrative:

At approximately 3:30 PM on the above date I conducted a reconnaissance visit at Murphy Family

Farms, Inc./Highlands, LLC near Williamsfield. Weather conditions Were partly cloudy, with

wind out ofthe southwest and a temperature of about 60°F.Photographs are attached. Video

photography was also utilized.

Wastewater Irrigation

Swine wastewater from the lagoon system was being irrigated on cropland immediately west ofthe

lagoons. The traveling irrigation gun was applying wastewater to the northeast quadrant ofthe 80

acre field located west ofthe lagoons. I observed two distinct leaks in the supply pipe positioned

between the lagoons and the hose reel. Wastewaterwas discharging from the supply pipe. The

irrigation appeared to have been operating for several hours. Saturation of the field in the location

ofthe leaks can lead to wastewater draining off-site.

Off-site Odor

A strong swine waste odor was observed while on the gravel road immediately northeast ofthe

facility. The odor was coming from Murphy Family Farms, Inc.fHighlands, LLC.

Sometime following the field visit I contacted Doug Baird by telephone and advised him to repair

the leaks in the wastewater irrigation pipe.

-

-

This report is submitted for your information.

Illinois EPA

Division of Water Pollution Control

Peoria Regional Office

Author:

‘~

I C~&c

Att:

-Photographs

cc:

-Torn Andryk, DLC

-Jane McBride, IAGO

-Peoria Files

~r

Affidavit of James Kammueller

Exhibit E

a:\livestock\murphy\fieldreport3.02.doc

---

Photograph

#1.

The traveling gun

irrigation unit is

in operation.

View is south.

Murphy Family Farms, Inc. /The Highlands, LLC

November 13,2002

(IEPA-FOS-PeorjaJErjc

0.

Ackerman)

Photograph

#2.

The traveling gun

irrigation unit is

in operation.

View is south.

F

-.1

Page 1 of2

---

Page 2 of 2

Photograph

#3.

The traveling gun

irrigation unit

is

in operation. The

swine confinement

buildings are seen

in the background.

View is east.

November 13, 2002

Photograph

#4.

The traveling gun

irrigation unit is

in operation. The

swine confinement

buildings are seen

in the background.

View is east.

a:\I Ivestck\rnuiphy\photos7.02.doc

---

Inspection Report

Subject:

KNOX COUNTY

-Murphy Family Farms, Inc.!The Highlands, LLC

(Near Williamsfield)

Follow Up Inspection/Manure Release

To:

DWPC/FOS&RU

-

-

From:

Eric 0. Ackerman DWPC-FOS, Peoria Region

F’.

-~

.

T

‘~C

.IJ4I.e.

On the above date, Todd Huson and I returned to Murphy Family

Farms,

Inc.!The Highlands,

LLC swine facility south

of Williamsfield to follow up on the recent manure release. The purpose was

to

further

examine the flow path from the irrigation field serving the swine facility. During the

inspection, Lester Can and Gaileen Roberts were contacted. Samples were also collected from various

locations with laboratory (analytical) results provided in Table 1.

Refer to the attached drawings and

photographs for additional details. Weather conditions were very hot

and humid

with a temperature

above 80 F. The

following paragraphs report details of the field visit.

-

- 0ff-site Odor Observations

Strong, offensive odors were noted at 12:20 PM while on the gravel road (llOON) just

north

of

the swine facility. The

odors were coming from Murphy Family Farms, Inc./The Highlands, LLC.

-

Concrete Headwall

Structure

A concrete headwall structure

is

located north

of the Can residence as

shown in previous

drawings. The structure

is in the S 1/2, Section 10, Ti ON, R4E (Elba

Township) in Knox County being

about ¾ mile south of the irrigation field involved in the

manure

release. Two field tiles outlet at the

headwall forming a stream which is

an unnamed tributary to French Creek. Samples were collected

from