ILLINOIS POLLUTION CONTROL BOARD
May 3, 2007
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):
On February 13, 2007, respondent Michael J. Pfister (Pfister) filed a motion for summary
judgment. Pfister’s co-respondents, Bob Drake, Wabash Valley Service Company, Noah D.
Horton, and Steve Kinder, have not joined or filed a response to Pfister’s motion, nor have any of
the four of them filed their own motion for summary judgment.
Today the Board finds that the record in this case is not sufficient for full consideration of
Pfister’s motion for summary judgment and a determination whether or not to grant it. Under the
circumstances of this case, however, the Board construes the motion as an unopposed motion to
dismiss and dismisses Pfister with prejudice from this proceeding.
Below, the Board first summarizes the procedural history of this case and the allegations
contained in the complaint. The Board next summarizes Pfister’s’ arguments in his motion for
summary judgment before construing the motion as an unopposed motion to dismiss, granting
the motion as construed, and dismissing Pfister from this proceeding.
PROCEDURAL HISTORY
On May 9, 2005, complainants filed a citizen’s complaint (Comp.) 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 Environmental Protection Act (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.
On February 6, 2007, Pfister filed a motion for summary judgment (Mot.), accompanied
by an affidavit of Michael J. Pfister (Aff.). On February 13, 2007, Pfister supplemented that
filing with an original copy of the affidavit.
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In an order dated March 5, 2007, Board hearing officer Carol Webb noted that
“[c]omplainant Vernon Zohfeld is now deceased” and that the complainant’s attorney needed
time to consult with his surviving client to determine how or whether the case would proceed.
Zohfeld v. Drake,
et al.
, PCB 05-193, slip op. at 1 (Mar. 5, 2007).
In an order dated April 12, 2007, the hearing officer stated that “[c]omplainants do not
object to the motion for summary judgment and will not be filing a response.”
Zohfeld v. Drake,
et al.
, PCB 05-193, slip op. at 1 (Apr. 12, 2007). The hearing officer further noted that the
complainant’s attorney needed to consult with his surviving client to determine how or whether
the remainder of the case would proceed.
Id
.
THE COMPLAINT’S ALLEGATIONS
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.
Id
. at 2.
The complaint 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.”
Id
. 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.”
Id
. at 3. The complaint describes this
movement of agrichemicals away from a designated field as “spray drift” or “over drift.”
Id
. 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.
Id
. 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
.
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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
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)).
MOTION FOR SUMMARY JUDGMENT
Pfister notes that the complaint alleges that, “[o]n or about May 8, 2000, and at other
times,” he sprayed agrichemical in a manner that would ensure the occurrence of overdrift
events. Mot. at 4-5, citing Comp. at 4 (¶19). Pfister further notes that the complaint asks the
Board to assess civil penalties for
each
violation. Mot. at 5 (emphasis in original), citing Comp.
at 5.
Pfister argues that the Board “has consistently held that a statute of limitations bar will
not preclude any action seeking enforcement of the Act,
if brought by the State
on behalf of the
public’s interest.” Mot. at 5 (emphasis in original), citing
Union Oil Co. of California d/b/a
Unocal v. Barge-Way Oil Co., Inc., PCB 98-169, slip op. at 5 n.1 (Jan. 7, 1999) (citation
omitted). Pfister emphasizes the Board’s conclusion that, because a private party initiated
Unocal, the case did not fall under the exception to the statute of limitations. Mot. at 5, citing
Union Oil Co. of California d/b/a Unocal v. Barge-Way Oil Co., Inc., PCB 98-169, slip op. at 5
n.1 (Jan. 7, 1999) (citation omitted). Pfister also emphasizes that, in a later order in the
Unocal
case, the Board stated that it had already concluded that “the statute of limitations in this case is
five years.” Mot. at 6, citing Union Oil Co. of California d/b/a Unocal v. Barge-Way Oil Co.,
Inc., PCB 98-169, slip op. at 2 (Feb. 15, 2001);
see
735 ILCS 5/13-205 (2004) (five-year
limitation).
Pfister states that “[t]he instant case is brought by private individuals, Vernon and Elaine
Zohfeld, not by the State of Illinois.” Mot. at 6 (¶18). Pfister argues that, as in Unocal, “the
statute of limitations applicable to the instant case is five years.” Mot. at 6 (¶19). Pfister notes
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that the five-year limitation expired May 8, 2005. Mot. at 6 (¶20). Pfister presumes that
complainants filed their complaint on May 9, 2005, because the preceding day fell during a
weekend.
Id
. Pfister concludes that “any claims that accrued more than five years before
Complainants filed their complaint n May 9, 2005 . . . are barred by Section 13-205.”
Id
., citing
735 ILCS 5/13-205 (2004).
In addition, Pfister claims that he “did not spray agrichemicals or any other substance at
or adjacent to Complainants’ property, nor was he present at Respondent Drake’s or
Complainants’ property, either in the employ at Wabash Valley Service Company or otherwise,
on any date on or after May 8, 2000.” Mot. at 6-7 (¶21). Pfister further claims that he has “no
personal knowledge of any agrichemical spraying at any such property on or after May 8, 2000.”
Mot., Exh. A (Pfister affidavit). Consequently, Pfister argues that he “is entitled to summary
judgment as a matter of law as to Complainants’ claims he violated the Act on or after May 8,
2000.” Mot. at 6 (¶22).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,
693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must
consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the
opposing party.”
Id.
Summary judgment “is a drastic means of disposing of litigation,” and
therefore it should be granted only when the movant's right to the relief “is clear and free from
doubt.”
Id.
, citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986). “Even so,
while the nonmoving party in a summary judgment motion is not required to prove [its] case, [it]
must nonetheless present a factual basis which would arguably entitle [it] to a judgment.” Sutter
Sanitation, Inc.
et al
. v. IEPA, PCB 04-187 slip op. at 9 (Sept. 16, 2004); citing Gauthier v.
Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2d Dist. 1994).
BOARD ANALYSIS
Section 101.500(d) of the Board’s procedural rules provides that, “[w]ithin 14 days after
service of a motion, a party may file a response to the motion. If no response is filed, the party
will be deemed to have waived objection to the granting of the motion, but the waiver of
objection does not bind the Board or the hearing officer in its disposition of the motion.” 35 Ill.
Adm. Code 101.500(d).
Because the filing of the motion for summary judgment and the death of one of the two
complainants both occurred within a short time of one another, the Board faces unusual
circumstances in determining whether to grant that motion. The record in this case is not
sufficient for a full consideration of the motion for summary judgment and does not provide an
adequate basis for the Board to determine that there is no genuine issue of material fact and that
Pfister is entitled to judgment as a matter of law. However, the surviving complainant has
indicated that she does not object to the motion and does not intend to file a response to it.
Furthermore, by operation of the Board’s procedural rules, she and Pfister’s co-respondents are
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deemed to have waived objection to the granting of the motion.
See
35 Ill. Adm Code
101.500(d). Based on these unusual circumstances, the Board construes Pfister’s motion for
summary judgment as an unopposed motion to dismiss. The Board grants Pfister’s unopposed
motion to dismiss with prejudice without addressing the substance of the arguments in the
motion for summary judgment.
CONCLUSION
Under the unusual circumstances of this case, the Board today construes Pfister’s motion
for summary judgment as an unopposed motion to dismiss and grants the unopposed motion to
dismiss with prejudice. Consequently, this order is the last time respondent Pfister’s name will
appear in the caption of this proceeding.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on May 3, 2007, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
