PEOPLE OF THEBEFORESTATETHEOF ILLiNOIS,ILLINOIS
POLLUTION
)
CONTROL BOARD CLERKSS
OCT
3,
12005
OFFICE0
)
STATE OF ILLINOI
Complainant,
)
~
Con~roj
~
v.
)
PCB No. 00-104
)
(Enforcement)
THE HIGHLANDS, LLC, an Illinois limited
)
liability corporation, and MURPHY
)
FARMS, INC., (a division ofMURPHY
)
BROWN, LLC, a North Carolina limited
)
liability corporation, and SMITHFIELD
)
FOODS, INC., a Virginia corporation),
)
)
Respondents.
)
NOTICE OF FILING
To:
Bradley Halloran
Jane E. McBride
Hearing Officer
Assistant Attorney General
Illinois Pollution Control Board
Environmental Law Bureau
James R. Thompson Center, Suite 11-500
Office of the Illinois Attorney General
100 West Randolph
500 South Second Street
Chicago, IL 60601
Springfield, IL 62706
Jeffrey W. Tock
Harrington & Tock
Suite 601
Huntington Towers
201 West Springfield Avenue
P.O. Box 1550
Champaign, IL 61824-1550
PLEASE TAKE NOTICE that on October 31, 2005,1 filed with the Office ofthe Clerk
of the Illinois Pollution Control Board the original and nine copies of RESPONDENT MURPHY
FARMS, INC.’S AMENDED AFFIRMATIVE DEFENSE BASED ON LACHES TO ALL
COUNTS OF THE SECOND AMENDED. COMPLAINT, a copy ofwhich is hereby served
upon you.
Respectfully submitted,
Charles M. Gering
(THIS FILING IS MADE ON RECYCLED PAPER)
Dated: October 31, 2005
Charles M. Gering
McDemwtt Will & Emery LLP
227 West Monroe Street
Chicago, IL 60606
Phone: 312-372-2000
Fax: 312-984-7700
(THIS FILING IS MADE ON RECYCLED PAPER)
RCECEIVED
LERK S
OFFiCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 312005
PEOPLE OF THE STATE OF ILLINOIS
)
STATE OF ILLINOIS
~
~C~troIBoard
Complainant,
)
v.
)
PCBNo. 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.
)
RESPONDENT MURPHY FARMS, INC.’S
AMENDED AFFIRMATIVE DEFENSE BASED ON LACHES
TO ALL COUNTS OF THE SECOND AMENDED COMPLAINT
Respondent Murphy Farms. Inc. (“Murphy”), by and through its attorneys,
MCDERMOTT WILL & EMERY LLP, pursuant to the October 20, 2005 Board Order, hereby
states as its amended affirmative defense based on laches as follows:
1.
On July 5 and August 14, 1996, Doug Lenhart, the Director ofIllinois Operations
for Murphy, contacted Eric Ackerman ofthe Illinois Environmental Protection Agency (“IEPA”)
to discuss Highlands’ plans to construct a new hog farm. On May 6, 1997, James Baird of
Highlands contacted Mr. Ackerman regarding the same proposed farm. During these
conversations, Messrs. Lenhart and Baird provided a description of the new farm to Mr.
Ackerman, including its proposed location and operations.
2.
On September 4, 1996, James Kammueller, Manager ofthe IEPA’s Peoria
Regional Office, wrote a letter to Mr. Lenhart regarding the proposed farm. The letter stated that
(THIS FILING IS MADE ON RECYCLED PAPER)
“the description you provided ofthe new facility indicates that a potential for possible odor
problems does exist.” Mr. Kammueller wrote a letter to Mr. Baird on May 20, 1997 and
similarly stated that “flhe description provided ofyour proposed new swine facility indicates
that a potential for possible odor problems does exist.” However, Mr. Kammueller did not state
in either letter that the new farm, as proposed, would violate the Illinois Environmental
Protection Act (the “Act”). Furthermore, Mr. Kammueller did not object to the proposed
location or operations of the new farm.
3.
The Complainant may reasonably be imputed to have the knowledge of IEPA
employees regarding communications between members of the public and IEPA employees
relating to matters regulated by the IEPA.
See Metro. Sanitary Din, of Greater Chicago v.
Anthony Pontarelli & Sons, Inc.,
7111. App. 3d 829, 840 (1st Dist. 1972) (notice to the agent of
facts learned by him while actually engaged in the business of the principal is notice to the
principal).
4.
Construction ofHighlands’ farm began in the fall of 1997. Highlands’ farm was
constructed in the same location and with the same operations as was described to the
Complainant by Messrs. Lenhart and Baird.
5.
Complainant did not conduct an inspection of Highlands’ farm until April 23,
1998, after the farm was fully constructed and operational.
6.
The Act provides that the IEPA “shall have the duty to collect and disseminate
such information
. . .
as may be required to carry out the purposes ofthis Act.” 415 ILCS 5/4(b).
-2-
(THIS FILING IS MADE ON RECYCLED PAPER)
7.
The Complainant did not attempt to contact Highlands or Murphy before or
during the construction of Highlands’ farm to inform Highlands orMurphy that the farm’s
location or operations would violate the Act.
8.
Highlands and Murphy reasonably relied on the fact that Complainant did not
object to the proposed location and operations ofHighlands’ farm in their belief that the farm
was in compliance with the Act.
9.
Highlands and Murphy had no reasonable way ofknowing at the time of
construction that the Complainant believed that the proposed location and/or operations violated
the Act. Furthermore, Highlands and Murphy did not have any reason to believe that further
investigation ofthe compliance status ofthe farm was necessary.
10.
The Complainant could easily have informed Highlands and Murphybefore or
during construction ofthe farm that it believed that the proposed location and operations of the
farm would violate the Act.
11.
Complainant was aware or should have been aware that dissemination of this
information to Highlands and Murphy would aid in enforcement of the Act.
12.
Had the Complainant acted with due diligence by disseminating this information
prior to or during the construction ofHighlands’ farm, the Complainant could have prevented
Highlands’ and Murphy’s alleged noncompliance with Illinois law, thus preventing the harm
alleged to the environment.
-3-
(THIS FILING IS MADE ON RECYCLED PAPER)
13.
Complainant may reasonably be imputed to have knowledge of the details ofthe
proposed location and operations ofHighlands’ farm approximalely a year before construction of
the farm began.
14.
Even though Complainant had this knowledge and believed that the proposed
location and operations would violate the Act, the Complainant did not contact Highlands or
Murphy to assert its right to inspect the farm or to initiate the inquiries that led to the instant
Complaint until April 23, 1998. Therefore, the Complainant did not demonstrate due diligence.
15.
Complainant could easily have informed Highlands and Murphy of the violations
perceived by the Complainant; however, Complainant chose to expend its resources on other
sources and delayed in asserting its rights.
16.
Highlands and Murphy have suffered, and will suffer, prejudice and injury as a
result ofComplainant’s failure to act in a timely manner in that Highlands and Murphy were not
given information that would have enabled them to achieve compliance earlier. As a result, they
are incurring legal costs and are being pursued for penalties. In addition, if Highlands and
Murphy had known prior to or during the construction ofthe farm that the IEPA would later
claim that the farm’s proposed location and operations would violate the Act, Highlands could
have changed the location and operations of the farm.
17.
By the actions and inactions described above, Complainant failed to exercise due
diligence and thereby caused prejudice to Highlands and Murphy. As a result,,it would be
-4-
(THIS FILING IS MADE ON RECYCLED PAPER)
inequitable to allow Complainant to pursue the causes of action alleged in the Second Amended
Complaint.
Dated: October 31, 2005
Respectfully submitted,
MURPHY FARMS, INC.
Charles M. Gering
McDermott Will & Emery LLP
227 ‘West Monroe Street
Chicago, Illinois 60606
Phone: 312-372-2000
Fax: 312-984-7700
One ofits attorneys
By:
(THIS FILING IS MADE ON RECYCLED PAPER)
CERTIFICATE OF SERVICE
I, the undersigned attorney, certify that on October 31, 2005, I served the foregoing
attached RESPONDENT MURPHY FARMS, INC.’S AMENDED AFFIRMATIVE DEFENSE
BASED ON LACHES TO ALL COUNTS OF THE SECOND AMENDED COMPLAINT, by
U.S. Mail with proper postage prepaid upon:
One copy:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, IL 60601
JeffreyW. Tock
Harrington & Tock
Suite 601
Jane E. McBride
Assistant Attorney General
Environm~ntaiLaw Bureau
Office ofthe Illinois Attorney General
500 South Second Street
Springfield, IL 62706
Huntington Towers
201 West Springfield Avenue
P.O. Box 1550
Champaign, IL 61824-1550
Original and nine copies:
Clerk, Illinois Pollution Control Board
100 W. Randolph Street
State of Illinois Center
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, IL 60601
Dated: October 31, 2005
CR199 4546221-2.047331.0013
Charles M.
(THIS FILING IS MADE ON RECYCLED PAPER)
