ILLINOIS POLLUTION CONTROL BOARD
February 2, 2006
VERNON and ELAINE ZOHFELD,
Complainants,
v.
BOB DRAKE, WABASH VALLEY
SERVICE COMPANY, MICHAEL J.
PFISTER, NOAH D. HORTON, and STEVE
KINDER,
Respondents.
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PCB 05-193
(Citizens Enforcement - Air)
ORDER OF THE BOARD (by A.S. Moore):
Bob Drake (Drake), Wabash Valley Service Company (Wabash Valley), Michael J.
Pfister (Pfister), Noah D. Horton (Horton), and Steve Kinder (Kinder) (collectively, respondents)
seek a stay of this citizens air enforcement case filed May 26, 2005 by Vernon and Elaine
Zohfeld (complainants). In their complaint (Comp.), complainants allege that respondents
violated Section 9(a) of the Environmental Protection Act (Act) (415 ILCS 5/9(a) (2004)) and
Section 201.141 of the Board’s regulations (35 Ill. Adm. Code 201.141) by causing or allowing
agrichemical spray to drift over complainants’ adjacent property in Hamilton County. Comp. at
4.
The issue before the Board is whether this action should be stayed until completion of a
related criminal action involving a May 8, 2000 occurrence complained of here and involving
some but not all of the respondents in this matter.
Today the Board first denies complainants’ motion to strike respondents’ reply to the
response to the motion for stay. The Board then denies respondents’ motion seeking a stay of
this proceeding.
Below, the Board first sets forth the procedural history of this case and the allegations
contained in the complaint. The Board next summarizes the parties’ arguments on the
respondents’ motion for stay before analyzing them and deciding the motion.
PROCEDURAL HISTORY
On May 26, 2005, complainants filed a citizen’s complaint alleging that respondents
caused or allowed agrichemical spray applied to Drake’s field to drift to the complainants’
adjacent property, causing or tending to cause air pollution in violation of Section 9(a) of the Act
(415 ILCS 5/9(a) (2004)) and section 201.141 of the Board’s air quality regulations. 35 Ill.
Adm. Code 201.141. Comp. at 4. Complainants sought relief including civil penalties of
2
$50,000 for each violation of the Act and regulations, an order to cease and desist from any
further violation of the Act and regulations, and an award of costs and reasonable attorney fees.
Comp. at 5. In a July 7, 2005 order, the Board accepted the complaint for hearing but noted that
“[t]he Board lacks the statutory authority to award attorney fees and other litigation expenses in
citizen enforcement actions.” Zohfeld v. Drake,
et al.
, PCB 05-193, slip op. at 2 (July 7, 2005),
citing ESG Watts, Inc. v. PCB, 676 N.E.2d 299 (3rd Dist. 1997); People v. State Oil Co., PCB
97-103 (Aug. 19, 1999). Consequently, the Board struck that relief from the complaint as
frivolous.
See
415 ILCS 5/31(d)(1) (2004); 35 Ill. Adm. Code 101.202 (defining “frivolous”); 35
Ill. Adm. Code 103.212(a).
On July 8, 2005, Drake filed a Motion to Stay Proceedings and Answer and Affirmative
Defense in lieu of Motion to Stay Proceedings. Drake also filed a status report pursuant to 35 Ill.
Adm. Code 101.514. Also on July 8, 2005, Pfister filed a joinder in motion to stay proceedings
filed by Wabash Valley, Horton, and Kinder. On that same date, Pfister also filed a joinder in
motion for extension of time filed by Wabash Valley, Horton, and Kinder.
On July 12, 2005, Wabash Valley, Horton, and Kinder filed a verified motion to stay
proceedings and status report.
See
35 Ill. Adm. Code 101.514. On that same date, Wabash
Valley, Horton, and Kinder filed a motion for extension of time in which to answer or otherwise
respond to the complaint.
In an order dated July 27, 2005, Board Hearing Officer Carol Webb granted
complainants’ request for an extension to August 3, 2005, of the deadline to file a response to the
respondents’ motion to stay proceedings. On the same date, the hearing officer granted the
respondents’ request for an extension of the deadline to answer the complaint and reserved
setting an extended deadline until the Board rules on respondents’ motion to stay proceedings.
On August 5, 2005, complainants filed their response to motion to stay proceedings. On
August 15, 2005, Wabash Valley, Pfister, Horton, and Kinder filed a motion for leave to file a
reply to complainants’ response to motion to stay proceedings. On August 23, 2005, Drake also
filed a motion for leave to file a reply to complainants’ response to motion to stay proceedings.
In an order dated September 8, 2005, the hearing officer permitted respondents to file a reply by
September 23, 2005. On September 22, 2005, respondents Wabash Valley, Pfister, Horton, and
Kinder filed their reply to the complainants’ response to the motion to stay proceedings.
Motion to Strike
Pursuant to Section 101.500(e) of the Board’s procedural rules, respondents in a
September 8, 2005 hearing officer order obtained leave without complainants’ objection to file a
reply to complainant’s response to the motion for stay by September 23, 2005. On October 24,
2005, complainants filed a motion raising various grounds to strike the respondents’ reply to the
complainants’ response to the motion to stay proceedings. On November 7, 2005, respondents
Wabash Valley, Pfister, Horton, and Kinder filed their response to complainants’ motion to strike
respondents’ reply to complainants’ response to motion to stay proceedings. The Board finds
that the reply assists its understanding of the issues involved in this motion and denies the motion
to strike.
3
THE COMPLAINT’S ALLEGATIONS
According to the complaint in this case, the complainants owned and operated a business
in Hamilton County that bred and raised thoroughbred horses. Comp. at 1. The complaint also
states that Drake owns a 44-acre tract of agricultural land adjacent to complainants’ residence
and horse farm; Wabash Valley is an agricultural cooperative that sells agrichemicals, including
chemical pesticides and herbicides, and applies them to agricultural fields; and Pfister, Norton,
and Kinder work for Wabash Valley. Comp. at 2.
The complaint also alleges that, on or about May 8, 2000, Wabash Valley, Pfister,
Horton, and Kinder sprayed agrichemicals including Butyrac-200, RoundUp Ultra, Bicep II
Magnum, Aatrex, and Celatom MP-79 on and around Drake’s property. Comp. at 2-3.
Complainants further allege that respondents Wabash Valley, Pfister, Horton, and Kinder
performed this spraying “at Drake’s express request and with his knowledge, support, and
involvement, and in his presence.” Comp. at 2. The complainants claim that respondents
Wabash Valley, Pfister, Horton, and Kinder sprayed in a manner that ensured the agrichemicals
would “drift and cloud onto and across the adjacent property owned and occupied by the
Zohfelds.” Comp. at 3. The complaint describes this movement of agrichemicals away from a
designated field as “spray drift” or “over drift.” Comp. at 2. Complainants claim that their
property has been subjected to spray drift on many occasions both before and after the alleged
May 8, 2000 incident. Comp. at 4. They further claim that respondents have caused the
complainants’ property to experience spray drift “virtually every spring.”
Id
.
As a result of spray drift on May 8, 2000, complainants allege that Elaine Zohfeld came
into contact with agrichemicals “by absorption through the skin, . . . ingestion of blackberries
that were covered with the pollutants, and by aspiration.” Comp. at 3. Complainants argue that
this contact caused “serious and permanent injuries” to Elaine Zohfeld’s health.
Id
.
Complainants also allege that, on May 8, 2000, the Zohfelds’ horses came into contact
with agrichemicals “by absorption through the skin, by ingestion of grass and plants that were
overdrifted, and by aspiration.” Comp. at 3. Complainants allege that this contact caused
“severe and permanent injuries to all of the horses.”
Id
. Specifically, they allege that two horses
died and that the “entire herd has been rendered incapable of performing as racing or breeding
stock.”
Id
. As a result of the alleged spray drift, complainants claim that the affairs of their
equine breeding business have ended.
Id
.
Complainants further allege that, on May 8, 2000, numerous beneficial plants came into
contact with agrichemicals and experienced contamination. Comp. at 3. Complainants state that
Elaine Zohfeld and the Zohfelds’ horses ingested these plants, resulting in “severe and
permanent injuries and damages” to both her and the horses.
Id
.
Complainants further allege that they have “suffered a loss of enjoyment of their property
by being exposed to these agrichemical air pollutants.” Comp. at 3. The complaint expresses the
fear that complainants’ property will experience spray drift whenever Drake sprays his field.
Id
.
Complainants claim that, when they are at their home and hear spraying on Drake’s field, they
4
move their horses into a barn and close their windows until the spraying ends.
Id
. They claim
that this “seriously disrupts their enjoyment of their property.”
Id
. Complainants further argue
that that they have had to relocate their horses’ grazing area to reduce the risk of exposure to
spray drift.
Id
. Finally, complainants argue that they have not planted new garden plants or trees
because of a fear that they will be polluted or made unfit for eating.
Id
.
In the single count of the complaint, complainants allege that respondents violated
section 9(a) of the Act (415 ILCS 5/9(a) (2004)) and section 201.141 of the Board’s air
regulations (35 Ill. Adm. Code 201.141) by causing or allowing agrichemicals to drift and cloud
from Drake’s property onto the adjacent property owned by the Zohfelds, which caused or
tended to cause air pollution as that term is defined in section 3.02 of the Act (415 ILCS 5/3.02
(2004)).
RESPONDENTS’ MOTIONS FOR STAY
Drake Motion to Stay
On July 8, 2005, Drake filed a motion to stay proceedings (Drake Mot.). Drake states
that “the Complainants have fostered a number of actions as a result of the alleged injuries and
damages claimed from the application of agricultural products:” a criminal action against one or
more of the respondents other than Drake; a Department of Agriculture action against one or
more respondents other than Drake; and a civil action. Drake Mot. at 1-2. Drake states that the
complainants first filed their civil action in Hamilton County before they voluntarily dismissed it
and re-filed it in White County. Drake Mot. at 2. On a motion alleging
forum non conveniens
,
the court transferred the case to Hamilton County.
Id
. Drake states that the Illinois Appellate
Court approved that transfer in September 2004 and that the case remains in Hamilton County
with continuing discovery on a third amended complaint.
Id
.
At the time of filing his motion for stay, Drake understood that the remaining respondents
also intended to seek a stay of this proceeding because the pending criminal matter potentially
made witnesses unavailable. Drake Mot. at 2. If those witnesses are not available, argues Drake,
then he will lack “the means and witnesses to properly defend this matter.”
Id
. Drake further
argues that complainants can fully adjudicate their complaints after conclusion of the related
civil case. Until discovery is complete, however, Drake states that he cannot properly defend
this action.
Id
. Finally, Drake argues that he will be particularly unable to defend himself in the
event that the Board stays the action against the other respondents without staying the complete
case.
Id
. “It would be patently unfair to permit this action to proceed on fewer than all named
respondents.” Drake states that counsel for the remaining respondents is tendering to the Board
documents referred to in his motion.
Id
.
As required by the Board’s procedural rules (35 Ill. Adm. Code 101.514(a)), Drake filed
a status report with his motion for stay. In that report, Drake stated that no other party had
appeared but anticipated that the remaining respondents would file appearances at or near the
July 8, 2005 date on which he filed his motion for stay and status report.
5
Wabash Valley, Horton, and Kinder Motion to Stay
On July 12, 2005, Wabash Valley, Horton, and Kinder filed a verified motion to stay
proceedings (Joint Mot.) pending the conclusion of a related criminal action against them.
Wabash Valley, Horton, and Kinder state that, almost four years before filing a complaint with
the Board, the complainants filed a civil complaint with the Circuit Court of the Second Judicial
District in White County, Illinois. Joint. Mot. at 3, citing Vernon and Elaine Zohfeld v. Bob
Drake, Wabash Valley Service Co., Michael J. Pfister, and Noah D. Horton, No. 2001-L-21
(May 20, 2001) (2nd Cir. 2001). Wabash Valley, Horton, and Kinder argue that this civil
complaint also alleges spray drift onto the complainants’ property on or about May 8, 2000.
Joint Mot. at 3;
see
Vernon and Elaine Zohfeld v. Bob Drake, et al., No. 2001-L-21 (May 20,
2001) (2nd Cir. 2001) (including allegations relating to May 8, 2000 overspray in Counts IV, V,
and VI). Wabash Valley, Horton, and Kinder further argue that, on April 26, 2005, the United
State Attorney’s Office filed a criminal information
1
alleging that Wabash Valley, Glen S.
Kinder, and Horton on or about May 8, 2000 “did use a registered pesticide in a manner
inconsistent with its labeling.” Joint Mot. at 3-4, citing United States v. Wabash Valley Service
Co., Glen S. Kinder, and Noah David Horton, No. 05-40029-JPG (S.D. Ill.).
Wabash Valley, Horton, and Kinder argue that “[a] party may claim the fifth amendment
[to the United State Constitution (U.S. Const., amend. V)] privilege in a pending civil matter to
protect from involuntarily disclosing information which may implicate him criminally.” Joint
Mot. at 4, citing People
ex rel
. Hartigan v. Kafka & Sons Building & Supply Co., 252 Ill. App.
3d 115, 119 (1st Dist. 1993). While Wabash Valley, Horton, and Kinder acknowledge that a stay
of a civil proceeding is not generally appropriate before a criminal investigation has ripened into
a formal charge, they stress that “[c]ourts have indicated that an announced [criminal] charge
against a defendant weighs heavily in the defendant’s favor in deciding whether to stay civil
proceedings.” Joint. Mot at 5, citing Jacksonville Sav. Bank v. Kovack, 326 Ill. App. 3d 1131,
1137 (4th Dist. 2002). Where a criminal action is simultaneously pending with a civil action,
courts may stay the civil proceeding based on the fifth amendment until the resolution of the
criminal matter.” Joint Mot. at 4, citing Kafka & Sons Bldg. & Supply Co., 252 Ill. App. 3d at
119. Wabash Valley, Horton, and Kinder further argue that, when considering whether to stay
civil proceedings during a parallel criminal proceeding, the Board should consider
“‘the extent to which the defendant’s fifth amendment rights are implicated.’ In
addition, the decisionmaker should generally consider the following factors: (1)
the interest of the plaintiffs in proceeding expeditiously with this litigation or any
particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the
burden which any particular aspect of the proceedings may impose on the
defendants; (3) the convenience of the court in the management of its cases, and
the efficient use of judicial resources; (4) the interest of persons not parties to the
civil litigation; and (5) the interest of the public in the pending civil and criminal
1
“Information” means “[a]n accusation exhibited against a person for some criminal offense,
without an indictment. An accusation in the nature of an indictment, from which it differs only
in being presented by a competent public officer on his oath of office, instead of a grand jury on
their oath.”
Black’s Law Dictionary
(6th ed. 1990).
6
litigation.” Joint Mot. at 4, citing Keating v. Office of Thrift Supervision, 45 F.3d
322, 324-25 (9th Cir. 1995).
Addressing these factors, Wabash Valley, Horton, and Kinder note that they have been
formally charged in a criminal matter that stems from the same May 8, 2000 occurrence that
underlies this matter before the Board. Joint Mot. at 5;
see
United States v. Wabash Valley
Service Co., Glen S. Kinder, and Noah David Horton, No. 05-40029-JPG (S.D. Ill.). Wabash
Valley, Horton, and Kinder further argue that any delay resulting from a stay would not
prejudice the complainants. Joint Mot. at 5. The three respondents note that, although the circuit
court complaint may result in payment of money damages to the complainants, the Board action
would provide only civil penalties payable to the state and an order to cease and desist from an
alleged violation that is not ongoing. Joint Mot. at 5-6.
Wabash Valley, Horton, and Kinder next argue that a stay would allow them to “maintain
their rights against self-incrimination.” Joint Mot. at 6. They further argue that denying a stay
would place an onerous burden on them. “[S]hould they invoke their rights against self-
incrimination in this matter to protect themselves from the use of such testimony in the criminal
case, the fact finder in this matter could be ‘entitled to draw negative inferences against those
who assert fifth amendment rights against self-incrimination.’”
Id
., citing People v. $1,124,905
United States Currency, 177 Ill. 2d 314, 362 (1997).
Next, Wabash Valley, Horton, and Kinder claim that granting a stay would not result in
inconvenience to the Board. Joint Mot. at 6. They note that the Board has not yet established a
schedule for this case. Furthermore, they argue that a stay would use Board resources efficiently
because “some of the facts at issue could be decided during the criminal case.”
Id
. Addressing
the fourth numbered factor, Wabash Valley, Horton, and Kinder state that “no persons who are
not parties to the Complaint have expressed interest in the civil matters involved in the
Complaint.”
Id
. They further argue that the public has not voiced interest in these matters.
Id
.
Wabash Valley, Horton, and Kinder raise additional issues in support of their request for
a stay. First, they note that Drake and Pfister are respondents in this matter but are not named as
defendants in the federal criminal information. Joint. Mot. at 6;
see
U.S.A. v. Wabash Valley
Service Co., Glen S. Kinder, and Noah David Horton, No. 05-40029-JPG (S.D. Ill.). Wabash
Valley, Horton, and Kinder state that, because they intend to assert their fifth amendment rights
in this matter, Drake and Pfister would suffer prejudice because they could not obtain
information with regard to defenses or a cross-complaint. Joint Mot. at 6. Second, Wabash
Valley, Horton, and Kinder indicate that Drake’s counsel and Pfister both agree to the issuance
of a stay.
Id
. Also, the three respondents argue that, because the complaint alleges a single
incident that occurred more than five years ago, granting a stay would not harm the public or the
environment.
Id
. Finally, Wabash Valley, Horton, and Kinder state that they do not seek a stay
of this matter pending resolution of the civil matter, if in fact that matter is still pending at the
conclusion of the criminal case. Joint Mot. at 5.
As required by the Board procedural rules, Wabash Valley, Horton, and Kinder submitted
a status report with their motion to stay proceedings.
See
35 Ill. Adm. Code 101.514. In that
7
report, they note that “[n]o discovery, scheduling conference, or other activity has occurred” in
this matter.
Pfister’s Joinder in Motion to Stay Filed by Wabash Valley, Horton, and Kinder
On July 8, 2005, Pfister filed joinder (Joinder) in the motion to stay proceedings filed by
Wabash Valley, Horton, and Kinder. Pfister noted that a criminal information filed in the United
States District Court for the Southern District of Illinois relates to the same occurrence as this
matter. Joinder at 1;
see
United States v. Wabash Valley Service Co., Glen S. Kinder, and Noah
David Horton, No. 05-40029-JPG (S.D. Ill.). Pfister further noted that, while he is named as a
respondent in this matter, he is not named as a defendant in the information. Joinder at 1.
Pfister states that, on or about July 8, 2005, Wabash Valley, Horton, and Kinder filed a
motion to stay proceedings. Joinder at 2;
see
Joint Mot. at 1. Pfister further notes that Wabash
Valley, Horton, and Kinder “intend to maintain their fifth amendment rights against self-
incrimination.” Joinder at 2. Pfister argues that this would prevent him from obtaining
information from his co-respondents regarding defenses or any potential cross-complaint. He
states that he would suffer prejudice if the Board does not grant a stay and accordingly joins in
the motion to stay filed by Wabash Valley, Horton, and Kinder.
Id
.
COMPLAINANTS’ RESPONSE TO MOTIONS TO STAY
On August 5, 2005, complainants filed a response to motions to stay proceedings (Resp.).
Complainants first argue that the Board is not generally required to stay a civil proceeding
pending the outcome of criminal proceedings. Resp. at 2, citing Keating v. Office of Thrift
Supervision, 45 F.3d 322, 324 (citation omitted) and Goodwin v. McHenry County Sheriff’s
Office Merit Comm’n., 713 N.E.2d 818, 824 (2nd Dist. 1999). Complainants further argue that
“the mere suggestion that Fifth Amendment considerations may apply is not sufficient to require
a stay of simultaneous administrative proceedings.” Resp. at 2, citing Keating, 45 F.3d at 326
(citation omitted). Complainants dispute respondents’ claim that fifth amendment rights are
entitled to “great weight” in the Board’s consideration of the motion for stay. Complainants
argue that five factors are relevant and that fifth amendment considerations are “only one factor
to be weighed against others.” Resp. at 1, citing Jacksonville Sav. Bank v. Kovack, 762 N.E.2d
1138, 1142 (4th Dist. 2002) and Keating
, 45 F.3d at 326.
Complainants next argue that respondents cannot raise the risk of self-incrimination
“only as a remote and speculative possibility.” Resp. at 3, citing Martin-Trigona v. Gouletas
,
634 F.2d 354,362 (7th Cir. 1980). Complainants claim that, because the respondents have traced
no nexus between the risk of conviction in the pending federal criminal action and this
proceeding, this motion for a stay presents no genuine fifth amendment issue. Resp. at 4.
Complainants claim that only Kinder and Horton among the five respondents may even
invoke the fifth amendment: Drake and Pfister are not named as defendants in the federal
criminal information, and Wabash Valley as a corporation enjoys no privilege against self-
incrimination. Resp. at 3, citing U.S. v. White, 322 U.S. 694, 699 (1944). Complainants further
argue that Kinder and Horton have not specified how this Board proceeding might compromise
8
that privilege. Resp. at 3. Complainants also claim that the other three respondents make only
“equally vague and generalized assertions” that, by exercising their fifth amendment rights,
Kinder and Horton may jeopardize the other three respondents’ cases before the Board. Resp. at
4. Complainants state that Kinder and Horton may in the course of this proceeding raise specific
claims involving the fifth amendment.
Id
. At any time they may raise such claims, argue
complainants, “the parties, the hearing officer, and this Board will be in a much better position to
evaluate specific claims of potential prejudice, rather than the vague and speculative claims made
here.”
Id
.
Complainants note that the federal criminal information filed against Kinder and Horton
alleges that they used “‘a registered pesticide in a manner inconsistent with its labeling,” in
violation of 7 U.S.C. §§ 136j(a)(2)(G), 1361(b)(1)(B), and 1361(b)(4), and of 18 U.S.C. § 2.”
Resp. at 4. Complainants argue that the complaint in this proceeding does not allege a violation
of federal law or regulations and makes no allegations with regard to pesticide labels.
Id
.
Complainants thus conclude that the alleged violations of Illinois air pollution laws before the
Board “have no nexus whatsoever with the label violations raised in the federal criminal case.”
Resp. at 5. Complainants further argue the pending civil case has resulted in the exchange of a
large number of documents. Claiming that the respondents have not filed a similar motion to stay
that case, complainants suggest the respondents are not genuinely concerned with fifth
amendment protections and instead merely wish to avoid having the Board reach the merits of
the complaint.
Id
.
After addressing the extent to which the respondents’ fifth amendment rights are
implicated in this proceeding, complainants turn to the five factors they argue the Board must
weigh in determining the motion for stay. On the first issue of their interest in expeditious
resolution, complainants stress that the alleged incident of spray drift occurred more than five
years ago on or about May 5, 2000. Resp. at 5. Complainants argue that granting a stay would
result in prejudice because it would “soon create problems of proof and stale evidence.”
Id
.
With regard to the second issue of the effect of a stay on the respondents, complainants claim
that “[r]espondents have voice no specific, tangible prejudice to them or anyone else by
proceeding with this case.”
Id
.
Addressing the third issue, complainants argue that a stay would have a detrimental effect
on the Board’s management of its docket and resources. Complainants claim that, particularly
without a clear basis on which to grant a stay, it is inefficient and ineffective to allow a case to
“merely tread water.” Resp. at 5. Complainants further suggest that delay is inconsistent with
the Act’s purpose of addressing air pollution in the state.
Id
, citing 415 ILCS 5/8 (2004).
Turning to the fourth issue, complainants strenuously disagree with respondents’ claim that
neither third parties nor the public has demonstrated an interest in this proceeding. Resp. at 6.
Complainants claim that the Agency, the Illinois Attorney General’s office, and a southern
Illinois television station all have indicated an interest in its outcome.
Id
. Finally, addressing the
fifth issue of the public’s interest in the case, complainants argue that the public’s environmental
rights give rise to a “strong interest in this case and its outcome, and its expeditious resolution.”
Also, complainants characterize respondents as “serial violators” whose spraying operations
constitute an ongoing threat to the public and the environment. Resp. at 6-7.
9
RESPONDENTS’ REPLY TO COMPLAINANTS’ RESPONSE
Pursuant to the hearing officer’s September 8, 2005 order granting leave to file a reply by
September 23, 2005, respondents Wabash Valley, Pfister, Horton, and Kinder on September 22,
2005, filed a reply to complainants’ response to motion to stay proceedings (Reply).
Respondents first argue that complainants “did not completely or accurately represent the
state of the case law regarding simultaneous criminal and civil proceedings involving the same
subject matter and therefore incorrectly applied the case law . . . .” Reply at 2. With regard to
factors weighed by the Board in deciding a motion for stay, respondents dispute complainants’
statement that “‘great weight’ is not to be given any particular factor, including the alleged Fifth
Amendment right.” Reply at 2, citing Resp. at 1 and Jacksonville Savings Bank, 762 N.E.2d at
1142.
Respondents argue that the case law places considerable weight on the fifth amendment
factor in this matter. Respondents claim that Jacksonville Savings Bank continues its analysis of
this issue by stating “an
announced charge
against a defendant
weighs heavily in the defendant’s
favor
in deciding whether to stay civil proceedings.” Reply at 2, citing Jacksonville Savings
Bank, 762 N.E.2d at 1142 (emphasis in original). Respondents further claim that, “[w]hen there
is
substantial overlap of the issues involved in the civil and criminal proceedings
, ‘the risk of
impairing a party’s Fifth Amendment rights is rather severe.’” Reply at 3, citing Hollinger Int’l.,
Inc. v. Hollinger, Inc., 2005 U.S. Dist LEXIS 14437 (N.D. Ill. 2005) (emphasis in original).
Because that “substantial overlap” exists between the criminal matter and Board proceedings,
argue respondents, the Board should grant the stay. Reply at 3.
Respondents next argue that complainants “grossly mischaracterized statements made in
the Motion to Stay.” Reply at 2. Respondents dispute complainants’ claim that no nexus exists
between the Board complaint alleging air pollution and the criminal information alleging
pesticide use inconsistent with its labeling. Respondents claim that the two complaints
substantially overlap because both allege that an incident occurring on or about May 8, 2000, and
involving application of agrichemicals resulted in drifting or blowing of those chemicals. Reply
at 4. Respondents thus argue that the two proceedings “are based on the same subject matter.”
Id
.
Respondents further claim the complainants have mischaracterized the risk that they will
experience problems with proof and stale evidence. Respondents state that “[c]omplainants filed
their complaint with the Board five years and one day after the alleged activities occurred.”
Reply at 5. Respondents argue that it is disingenuous after a delay of this length to ask the Board
to expedite its handling of the case.
Id
., citing Resp. at 5.
Finally, respondents argue that complainants “asserted new facts that are not of record in
this proceeding.” Replay at 2. First, in response to complainant’s claim that a local television
station’s report demonstrated interest in the case, respondent state that they provided no verifying
information. Reply at 5, citing Resp. at 6. Second, in response to complainants’ claim that the
Agency and the Illinois Attorney General’s Office had indicated interest, respondents argue that
there is no indication that the Attorney General has initiated action against them. Reply at 5,
10
citing Resp. at 6. Third, in response to complainants’ claim that here had been a previous
incident of spray drift, respondents argue that no such incident is alleged in the complaint “and
would, in any case, be irrelevant and barred from consideration by the applicable statute of
limitations.” Reply at 5, citing Resp. at 6-7.
MOTION TO STRIKE
On October 24, 2005, complainants filed a motion to strike the reply to complainants’
response to motion to stay proceedings (Mot. Strike) filed by Wabash Valley, Pfister, Horton,
and Kinder. Generally, complainants argue that respondents’ “allegation of misrepresentations
and mischaracterizations were merely a ploy to obtain the hearing officer’s leave to file a reply
(which otherwise is not allowed pursuant to this Board’s procedural rules), which clearly justifies
striking the reply.” Mot. Strike at 2. “Respondents have fabricated mischaracterizations in order
to present to the Board further arguments that should have been included in their motion.” Mot.
Strike at 3.
First, complainants note respondents’ claim that they have mischaracterized the case law
“by suggesting that no case states that ‘great weight’ is to be given to any particular factor in
determining whether to grant a stay such as this.” Mot. Strike at 2;
see
Reply at 3. Complainants
suggest, by arguing that respondents do not cite a case assigning great weight to the “announced
charge” factor on which they rely, that respondents themselves mischaracterize the case law.
Mot. Strike at 2;
see
Reply at 3. Complainants further argue that their response specifically
refers to five factors that the Board must consider in deciding the motion for stay. Mot. Strike at
2; Resp. at 1-2.
Second, complainants dispute the respondents’ arguments that there is substantial overlap
between the civil and criminal cases. They describe this claim as a “red herring inserted solely
for the purpose of obtaining leave to get one last argument before this Board (an argument that
should have been included in Respondents’ original motion).” Mot. Strike at 3. Complainants
continue by arguing that they have correctly characterized the pleadings by stating that no nexus
exists between the civil and criminal cases.
Id
. Complainants argue that the cases involve “two
completely different laws, two completely different regulatory schemes, two completely different
legislative intents, and two completely different sets of
prima facie
case elements.”
Id
.
Complainants further argue that the criminal case may result in a conviction on issues including
the contents of the pesticide label without proving the spray drift on which the Board case is
based.
Id
. While complainants acknowledge that respondents make “three arguments
concerning factual similarities between the core events giving rise to both actions,” they claim
that this does not render any of their own arguments mischaracterizations.
Id
.
Complainants also dispute respondents’ claim that it is disingenuous to argue that a stay
in a case that originated in 2000 would result in prejudice. Complainants stress that they noted
that the case is five years old in their complaint and in their response to the motion for stay. Mot.
Strike at 4;
see
Comp. at 2; Resp. at Resp. at 5. Complainants argue that there is “virtually
nothing inappropriate about reminding this Board that further delay may cause further
problems,” including stale proof. Mot. Strike at 4.
11
Third, complainants dispute respondents’ arguments regarding the existence of public
interest in staying this case. Complainants argue that respondents in their motion for stay
“provided virtually no factual support for their bald assertion that there is no public interest in the
case.” Mot. Strike at 5;
see
Mot. at 6. Complainants argue that respondents bear the burden of
justifying a stay and that their failure to satisfactorily address these issues does not allow them to
raise these issues as new facts in their reply. Mot. Strike at 4-5.
Complainants also dispute respondents’ claim that this matter does not involve any
discharge occurring before May 2000. Mot. Strike at 5; Resp. at 6-7; Reply at 5. Complainants
argue that respondents attached to their motion to stay the Hamilton County civil complaint that
specifically alleges overdrift occurring in 1998. Mot. Strike at 5. Complainants suggest that it is
inappropriate for respondents to request in a reply that the Board not consider information that
they supplied.
Id
.
RESPONSE TO COMPLAINANTS’ MOTION TO STRIKE
On November 7, 2005, respondents Wabash Valley, Pfister, Horton, and Kinder filed
their response to complainants’ motion to strike respondents’ reply to complainants’ response to
motion to stay proceedings (Resp. Strike).
Respondents first renew their argument that “[c]omplainants inaccurately represent the
state of the case law regarding the weight to the given to a defendant’s Fifth Amendment rights
when a criminal charge has been formally announced against such as defendant.” Resp. Strike at
3. Respondents again dispute complainants’ statement that “‘great weight’ is not to be given any
particular factor, including the alleged Fifth Amendment right.” Resp. Strike at 2, citing Resp. at
1 and Jacksonville Savings Bank, 762 N.E.2d at 1142. Respondents again argue that
Jacksonville Savings Bank continues its analysis of this issue by stating “an
announced charge
against a defendant
weighs heavily in the defendant’s favor
in deciding whether to stay civil
proceedings.” Resp. Strike at 2, citing Jacksonville Savings Bank, 762 N.E.2d at 1142 (emphasis
in original).
Next, respondents again dispute as a mischaracterization complainants’ claim that no
nexus exists between this proceeding and the criminal information. Resp. Strike at 3-4.
Respondents claim that the two complaints substantially overlap and are “inextricably
connected” because both allege that an incident occurring on or about May 8, 2000 and involving
application of agrichemicals resulted in drifting or blowing of those chemicals. Resp. Strike at 4.
Respondents renew their claim that the complainants have mischaracterized the risk that
they will experience problems with proof and stale evidence. Respondents again state that
“[c]omplainants filed their complaint with the Board five years and one day after the alleged
activities occurred.” Mot. Strike at 4. Respondents suggest that, if complainants foresee the risk
of problems, the that risk is now attributable to their “five-year delay in filing the Complaint on
the Respondents.” Resp. Strike at 5.
12
Finally, respondents note that complainants “take issue with several other statements
made in the Reply.” Resp. Strike at 5. Respondents simply “stand by all statements made in the
Reply and incorporate those statements.”
Id
.
DISCUSSION
The fifth amendment to the United States Constitution provides that no person “shall be
compelled in any criminal case to be a witness against himself. ” U.S. Const., amend. V. “The
fifth amendment does not, however, mandate a stay of civil proceedings pending the outcome of
similar or parallel criminal proceedings.” People
ex rel
. Hartigan v. Kafka & Sons Building &
Supply Co., 625 N.E.2d 16, 19 (1993). Wabash Valley, Horton, and Kinder assert that a stay
“would maintain their rights against self-incrimination by appropriate application of the Fifth
Amendment in any civil matter, including this case.” Mot. at 6. The same respondents assert
that Drake and Pfister would also be prejudiced if the Board does not grant a stay. Mot. at 7.
“[T]hey would be unable to obtain information from [the other] Respondents in respect to their
defenses or in respect to any cross-complaints they may file, since [the other] Respondents
intend to maintain their Fifth Amendment rights against self-incrimination.”
Id
.
Although the Board is not specifically required by the fifth amendment to stay this
proceeding,
courts have enunciated several factors to be considered when determining whether
to stay civil proceedings, including the following: (1) the plaintiff’s interest in an
expeditious resolution of the civil case and any prejudice to the plaintiff in not
proceeding; (2) the interest of and burdens on the defendant, including the extent
to which the defendant’s fifth amendment rights are implicated; (3) the
convenience to the court in managing its docket and efficiently using judicial
resources; (4) the interests of persons who are not parties to the civil proceeding;
and (5) the interests of the public in the pending civil and criminal actions.
Jacksonville Savings Bank
, 762 N.E.2d at 1136, citing Keating v. Office of Thrift Supervision,
45 F.3d 322 (9th Cir. 1995) and Nowaczyk v. Matingas, 146 F.R.D. 169 (N.D. Ill. 1993). The
Board addresses each of these factors in turn below.
Complainants’ Interest
Complainants have alleged that, as a result of spray drift occurring on or about May 8,
2000, and attributable to respondents, they have experienced various damages: loss of enjoyment
of their property, serious and permanent injury to the health of Elaine Zohfeld, severe and
permanent injuries to their horses, and the end of their horse-breeding business. Comp. at 2-4.
Complainants seek remedies including a finding that respondents violated the Act and
regulations as alleged, an order that respondents cease and desist from any further violation of
the Act and regulations, and assessment of civil penalties of $50,000 for each violation. Comp.
at 5.
13
Where there is an allegation that a party has been a victim of a crime, that party is entitled
to pursue its civil remedies.
See
Jacksonville Savings Bank, 762 N.E.2d at 1136. Furthermore,
this proceeding is based upon events alleged to have occurred more than five and one-half year
ago. Complainants argue that the delay resulting from a stay would cause problems related to
proof and stale evidence. Resp. at 5. Respondents argue that it is “disingenuous” for
complainants to raise this argument after filing a case with the Board five years after the relevant
events. Respondents do not persuasively dispute the risks of delay cited by petitioners (
see
Reply at 4-5), and the Board has previously decided that a statute of limitations does not apply to
actions brought before the Board under the Act. IEPA v. Pielet Bros. Trading, Inc.
, PCB 80-105
(Dec. 17, 1981). The Board finds that this factor weighs against granting a stay.
Respondents’ Interest
As stressed by the complainants, “whether a party’s fifth amendment rights are
implicated is a significant factor for the trial court to consider in determining whether to stay
civil proceedings, ‘but it is only one consideration to be weighed against other.’” Jacksonville
Savings Bank, 762 N.E. 2d at 1136, citing Federal Savings & Loan Insurance Corp. v. Molinaro,
889 F.2d 899, 902-03 (9th Cir. 1989). As stressed by respondents, “[c]ourts have indicated that
an announced charge against a defendant weighs heavily in the defendant’s favor in deciding
whether to stay civil proceedings.” Jacksonville Savings Bank, 762 N.E. 2d at 1137, citing
Sterling National Bank v. A-1 Hotels International, Inc. 175 F. Supp 2d 573 (S.D. N.Y. 2001)
The Board notes, however, that “when the issues in a criminal matter significantly overlap with
those in the civil proceeding, self-incrimination is more likely.” Jacksonville Savings Bank, 762
N.E. 2d at 1136-37, citing Trustees of the Plumbers & Pipefitters National Pension Fund v.
Transworld Mechanical, Inc. 886 F. Supp 1134, 1139 (S.D. N.Y. 1995).
The complaint before the Board alleges that the five respondents caused or allowed air
pollution “by causing or allowing agrichemicals to drift and cloud onto the adjacent property
owned and occupied by the Zohfelds” in violation of the Act and Board regulations. Comp. at 4.
The criminal information filed by the U.S. Attorney alleges that Wabash Valley, Kinder, and
Horton used a registered pesticide in a manner inconsistent with its labeling in violation of the
United State Code. While respondents argue that the complaint and information both involve the
application and alleged drift of agrichemicals on the same date at the same location (Reply at 4),
the Board cannot conclude on that basis alone that these two proceedings “significantly overlap.”
The two matters involve different parties, are based upon completely different statutes and legal
theories, and seek different remedies. Respondents may conceivably violate the Act without
violating federal pesticide labeling requirements, and a conviction of violating those labeling
requirements does not necessarily lead to a finding that respondents violated the Act.
In addition, respondents Wabash Valley, Horton, and Kinder argue only that denying a
stay would burden them “
should they invoke their rights
against self-incrimination in this matter
to protect themselves from the use of such testimony in the criminal case.” Mot. at 6 (emphasis
added). Wabash Valley, Horton, and Kinder further argue that respondents Drake and Pfister
would be prejudiced if a stay is not granted because they could not obtain information should the
other three respondents invoke their fifth amendment rights in this proceeding. Because
respondents have not indicated that they will invoke their Fifth Amendment rights, the Board
14
cannot now determine whether or to what extent they may be burdened.
See
Hollinger
International, Inc. v. Hollinger, Inc., 2005 U.S. Dist. LEXIS 14437 at *20-21 (July 15, 2005). In
Jacksonville Savings Bank, the court cited extensively to the trial judge’s decision to deny the
motion for a stay. That decision stressed that the respondent intended to invoke the fifth
amendment but had not yet done so and might never do so. Jacksonville Savings Bank, 672
N.E.2d at 1140-41. “I think until we see some facts a little closer to the case at hand, then I see
no reason to prevent the plaintiff from pursuing [its] civil remedies.”
Id
. “Let’s find out down
the road when there are specific requests and so forth as to when he wishes to assert that
privilege. I will review it and if it’s properly asserted and he shows a reasonable nexus between
a potential criminal conviction and the information requested, I will certainly back him up in his
assertion of his fifth amendment rights.”
Id
. (upholding denial of stay). At this point in the
Board proceedings, “the nature of the threat to defendants’ Fifth Amendment rights is necessarily
still imprecise.” Sterling National Bank, 175 F. Supp. 2d at 578.
Furthermore, of the five respondents named in this action, only three are named as
defendants in the federal criminal action. One of those three, Wabash Valley, is not a natural
person and cannot invoke fifth amendment protections. People v. Monroe. 189 N.E.2d 350, 352
(1963) (citations omitted) (“Because the privilege against self-incrimination is personal and
applicable only to natural individuals
,
the official records and documents of organizations such
as corporations may not be withheld by their custodian under a claim of this privilege.”). Drake
and Pfister are not named as defendants in the federal criminal action. They are not charged with
a criminal offense and do not risk criminal conviction in the case involving their three co-
respondents in this case on the basis of any testimony they may provide in this matter. While the
Board considers the respondents’ fifth amendment rights a significant factor in weighing this
motion for stay, “it is important also to note that ultimately, there is no threat that defendants will
be deprived of those rights. They retain the absolute right to invoke the privilege. Ultimately,
what is at risk is not their constitutional rights . . . but their strategic position in the civil case.”
Sterling National Bank, 175 F. Supp. 2d at 578, citing Baxter v. Palmigiano, 425 U.S. 308
(1976). The Board finds that this factor does not weigh in favor of granting a stay.
Convenience to the Board
Respondents have asked the Board to stay this matter “until the conclusion of the
criminal matter.” Mot. at 8. While the issuance of an information has “somewhat reduced” the
risk to complainants of a stay (Sterling National Bank, 175 F. Supp. 2d at 577), respondents in
effect seek to stay this matter indefinitely. The Board thus cannot predict when the case could
return to its active docket.
See
Jacksonville Savings Bank
, 762 N.E.2d at 1143. This burdens the
Board’s ability to manage its cases, and the Board finds that this factor weighs against granting a
stay.
Id
.
Private and Public Interests
“[T]he interests of non-parties and the public favor prompt resolution of the civil case.”
Sterling National Bank, 175 F. Supp. 2d at 580. Furthermore, the Act emphasizes private actions
as a means “to alleviate the burden on enforcement agencies, to assure that all interests are given
a full hearing, and to increase public participation in the task of protecting the environment.”
15
415 ILCS 5/2(a)(v) (2004). Furthermore, the information filed by the U.S. Attorney
unambiguously demonstrates interest by other parties and the public in these respondents and
their alleged actions. The Board finds that this factor weighs against granting a stay.
CONCLUSION
The Board first denies complainants motion to strike respondents’ reply to the response
to the motion for stay. The Board then concludes that a stay of these proceedings is not
appropriate. Having denied the motion for stay, the Board directs the hearing officer to proceed
expeditiously to hearing.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on February 2, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
