RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL BOAR~JN
072005
PEOPLE OF THE
STATE OF ILLNOIS
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
PCB No.
00-104
)
(Enforcement)
v.
)
)
THE HIGHLANDS, L.L.C., et a!.,
)
)
Respondents.
)
NOTICE OF FILING
To:
BradleyHalloran
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, Illinois 60601
Springfield,
Illinois
62706
Jeffrey W. Tock
Harrington, Tock & Royse
Huntington Towers, Suite 601
201
West Springfield Avenue
P.O.
Box 1550
Champaign, Illinois 61824-1550
PLEASE TAKE NOTICE that on June 7, 2005, we filed with the Illinois Pollution
Control Board the attached:
(1)
RESPONDENT
MURPHY FARMS, INC.’S MOTION
FOR
A ONE-DAY
EXTENSION
OF THE DEADLINE FOR ITS
ANSWER AND
FOR LEAVE
TO
FILE
ANSWER AND AFFIRMATIVE DEFENSES INSTANTER,
and
(2)
RESPONDENT MURPHY FARMS, INC.’S ANSWER AND
AFFIRMATIVE DEFENSES
TO
SECOND AMENDED COMPLAINT,
copies of which are hereby served upon you.
Respectfully submitted,
MURPHY FARMS, INC.
/~/
t2~
/
Dated:
June 7, 2005
By:
C—
~
One ofits attorneys’
(THIS FILING
IS MADE ON
RECYCLED PAPER)
Charles M. Gering
McDermott, Will &
Emery
227 West Monroe Street
Chicago, Illinois 60606
(312) 372-2000
(THIS FILING IS MADE ON RECYCLED PAPER)
I
CERTIFICATE OF SERVICE
I, the undersigned attorney, certify that on June 7,
2005, I served the foregoing Notice of
Filing and attached (1) RESPONDENT MURPHY FARMS, INC.’S MOTION
FOR A ONE-
DAY
EXTENSION
OF THE DEADLINE FOR ITS
ANSWER AND
FOR LEAVE TO
FILE ANSWER AND AFFIRMATIVE
DEFENSES INSTANTER, and (2)
RESPONDENT
MURPHY
FARMS, INC.’S ANSWER AND
AFFIRMATIVE DEFENSES TO
SECOND
AMENDED COMPLAINT, by U.S. Mail with proper postage prepaid upon:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite
11-500
100 West Randolph
Chicago, Illinois
60601
Jane E. McBride
Assistant Attorney General
Environmental Law Bureau
Office ofthe Illinois Attorney General
500
South Second Street
Springfield,
Illinois 062706
Jeffrey W. Tock
Harrington, Tock & Royse
Suite
601
Huntington Towers
201
West Springfield Avenue
P.O. Box
1550
Champaign, Illinois 61824-1550
Charles M. Gering
CH199
4482581-1.047331.0013
(THIS FILING IS MADE ON RECYCLED PAPER)
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
R~CE~VED
PEOPLE OF THE STATE OF ILLINOIS,
CLERKS OFFICE
jtjH
0?
2005
Complainant,
STATE
OF ILLINOIS
v.
No. PCB No.
00-104
Pollution Control Board
(Enforcement)
THE HIGHLANDS, LLC, an Illinois
limited liability corporation, and MURPHY
FARMS, iNC., (a division ofMURPHY-
BROWN, LLC, a Delaware limited
liability corporation,
and SMITHFIELD
FOODS, INC., a Virginia corporation),
Respondents.
RESPONDENT MURPHY FARMS, INC.’S MOTION FOR A ONE-DAY
EXTENSION OF THE DEADLINE FOR ITS ANSWER AND FOR
LEAVE TO FILE
ANSWER AND AFFIRMATIVE DEFENSES INSTANTER
Respondent Murphy Farms, Inc.
(“Murphy”) hereby moves the Board to enter an Order
granting Murphy a one-day extension ofthe deadline for filing its answer to Complainant’s
Second Amended Complaint (the “Complaint”), and granting Murphy leave to file its Answer
and Affirmative Defenses to the Complaint instanter.
In support ofits
motion, Murphy states as
follows:
1.
In its May 5, 2005
Order, the Board set a filing deadline ofJune 4, 2005
for
Murphy’s answer to the Complaint.
Because June 4, 2005
fell on a Saturday, Murphy’s answer
was due on the following Monday, June 6, 2005.
2.
Murphy prepared its
answer and affirmative defenses for filing on June
6,
2005,
but due to a misunderstanding among personnel at Murphy’s counsel’s office, Murphy’s answer
inadvertently was not filed on June
6.
(THIS FILING IS MADE ON RECYCLED PAPER)
3.
The inadvertent delay in the filing ofMurphy’s answer will not cause any delay of
the dates agreed to by the parties for discovery activities.
No hearing date has been set in this
matter.
4.
Murphy’s counsel has spoken with counsel for Complainant, and Complainant
does not object to the relief requested in this motion.
WHEREFORE,
for the foregoing reasons, Respondent Murphy Farms, Inc. respectfully
requests that the Board enter an order granting Murphy a one-day extension ofthe
filing deadline
for its answer, and granting Murphy leave to file its Answer and Affirmative Defenses to the
Complaint instanter.
Dated:
June 7, 2005
MURPHY FARMS, INC.
By:
___________________
One of Its Attorneys
Charles M. Gering
McDermott Will &
Emery LLP
227 West Monroe Street
Chicago, Illinois
60606-5096
312.372.2000
Telephone:
312.372-2000
Facsimile:
312.984.7700
CH199 4482605-1.047331.0013
-2-
(THIS FILING IS MADE ON RECYCLED
PAPER)
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
PEOPLE OF
THE STATE OF ILLINOIS
)
Complainant,
)
I~~~c3
v.
)
PCBNo.0~~ö4
)
(Enforcement~j~
0
1
?.Ou
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.
)
RESPONDENT MURPHY FARMS, INC.’S ANSWER AND
AFFIRMATIVE DEFENSES TO
SECOND AMENDED COMPLAINT
Respondent Murphy Farms, Inc. (“Murphy”), for its
Answer to Complainant’s Second
Amended Complaint (the “Complaint”), states as follows:
COUNT I
AIR POLLUTION
-
ODOR VIOLATIONS
1.
This
Count is brought on behalfof the People of the State ofIllinois, by Lisa
Madigan, Attorney General ofthe State ofIllinois, on her own motion and at the request ofthe
Illinois
Environmental Protection Agency (“Illinois EPA”), pursuant to Sections 42(d) and (e) of
the Illinois
Environmental Protection Act (“Act”), 415
ILCS
5/42(d),
(e)
(1998).
ANSWER:
Murphy admits
that Count I is brought by the Attorney General ofthe
State ofIllinois on behalfofthe People ofthe
State ofIllinois pursuant to Sections 42(d) and (e)
ofthe Act.
Further answering, Murphy lacks knowledge or information sufficient to form a
belief as to the truth ofthe remaining allegations in paragraph
1
and therefore denies each and
every such allegation.
(THIS FILING IS MADE
ON
RECYCLED PAPER)
2.
The Illinois
EPA is an agency ofthe State ofIllinois created by the General
Assembly in Section 4 of the Act, 415 ILCS 5/4(1998), and which is charged, j~rg~a
with the
duty of enforcing the Act.
ANSWER:
Murphy admits the allegations in paragraph 2.
3.
This
Count is brought pursuant to Section
31
ofthe Act, 415 ILCS
5/31
(1998),
after providing the Respondents The Highlands, LLC and Murphy Farms, Inc. with notice and
the opportunity
to meet with the Illinois EPA.
ANSWER:
Murphy admits that Count I purports to
state a cause ofaction pursuant to
Section
31
of the Act, and that Murphy and The Highlands, LLC (“Highlands”) met with
representatives ofIllinois EPA
and the Illinois Attorney General’s Office prior to the filing ofthe
complaint in this matter.
Further answering, Murphy denies each and every remaining allegation
in paragraph 3.
4.
Respondent The Highlands, LLC (“Highlands”) is a limited liability corporation,
registered and in good standing in the State ofIllinois. Highlands
is a member-managed LLC.
The members ofthe LLC are Douglas B.
Baird, 1124 Knox Highway
18, Williamsfield, Illinois
61489; James R. Baird, 2218 Knox Road lOON,
Yates City, IL 61572; and Patricia A. Baird,
2218 Knox Road
lOON, Yates City, IL
61572. The registered agent
is John J. Hattery, Suite 402,
Hill Arcade, Galesburg, IL 61401.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 4 and therefore
denies each and every such allegation.
5.
At the time offiling ofthis Amended Complaint, the
status ofMurphy Farms,
Inc., in the
State ofIllinois, as of January 2, 2002, is that ofa revoked corporation. The
corporation failed to file its annual report. At the time offiling of the original Complaint in this
matter, Respondent Murphy Farms, Inc.,
alk/a Murphy Family Farms (“Murphy”),
was a North
Carolina corporation registered to do business in the State ofIllinois in good standing. The
registered agent, at the timing ofthe filing ofthe original complaint, was Gerald W.
Shea, 547
S.
LaGrange Rd., LaGrange, IL
60525.
Some time later, the registered agent became Charles
Gehring
sic,
Esq., McDermott, Will & Emery LLP, 227 West Monroe Street, Chicago, Illinois
60606-5096. Since the time offiling
ofthe original Complaint in this matter, Murphy Farms, Inc.
has been acquired by Smithfield Foods,
Inc. of Smithfield, Virginia. Murphy Farms, Inc., is now
a division of Murphy-Brown, LLC which is the hog production group for and a division of
Smithfield Foods, Inc. Murphy-Brown, LLC is located at 2822 Highway 24 West, Warsaw,
North Carolina 28398.
-2-
(THIS FILING IS
MADE ON RECYCLED PAPER)
ANSWER:
Murphy admits (1) that it is not currently registered with the Illinois
Secretary of State to do business in the State of Illinois, (2) that at the time the complaint was
filed in this matter Murphy was a North Carolina corporation registered to do
business in the
State ofIllinois, (3) that its registered agent at the time the complaint was filed in this matter was
Gerald W.
Shea, 547
S. LaGrange Rd., LaGrange, IL
60525,
and that some time thereafter its
registered agent was Charles M. Gering, McDermott, Will &
Emery, 227 West Monroe Street,
Chicago, Illinois
60606-5096, (4) that Murphy was acquired by Smithfield Foods, Inc. of
Smithfield, Virginia, (5) that Murphy is now a division ofMurphy-Brown, LLC, and (6) that
Murphy-Brown, LLC is located at 2822 Highway 24
West, Warsaw, North Carolina 28398.
Further answering, Murphy denies each and every remaining allegation in paragraph
5.
6.
Respondents Highlands and Murphy own and operate a swine facility located just
south of Williamsfield in the NE 1/4, Section
10, T.1ON, R.4E, Elba Township, Knox County,
Illinois (the “facility”). The facility’s offices are located at
1122 Knox Highway 18,
Williamsfield, IL 61489.
ANSWER:
Murphy admits
that there
is a hog farm (the “Farm”) located south of
Williamsfield, Illinois, and that the Farm’s offices are located at
1122 Knox Highway 18,
Williamsfield, Illinois 61489, but denies each and every remaining allegation in paragraph 6.
7.
Upon information and belief, Respondent Highlands owns and operates the
property and buildings and shares in the operation ofthe wastewater treatment facility, and
provides labor for operation ofthe facility.
ANSWER:
Murphy admits that Highlands owns and operates the Farm, operates the
waste treatment system at the Farm,
and provides labor for operation ofthe Farm,
but denies
each and every remaining allegation in paragraph 7.
8.
Upon information and belief, Respondent Murphy owns all ofthe hogs at the
facility, owns and provides all feed, owns
and provides all medication, owns and provides
anything else that goes in and on the hogs such as syringe needles and marking sticks, provides
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(THIS FILING IS
MADE
ON RECYCLED PAPER)
for the transportation ofall
hogs, provides for veterinary services for the hogs, trains the
facility’s employees and otherwise shares in the direct control and management ofthe operation
with Respondent Highlands. All hog excrement that
is deposited and stored at the facility comes
from hogs owned by Respondent Murphy.
ANSWER:
Murphy admits that at the time the complaint was filed in this matter, (1) it
owned hogs raised by Highlands at the Farm,
(2) it provided feed, medication,
syringe needles,
marking sticks, veterinary services, and employee training in connection with Highlands’
operation of the Farm, and (3)~
its hogs generated waste.
Further answering, Murphy denies each
and every remaining allegation in paragraph 8.
9.
Upon information and belief, Respondent Murphy knew of and was involved in
the siting of the facility at its existing
location.
ANSWER:
Murphy admits that it was aware ofthe siting ofthe Farm at its existing
location, but denies each and every remaining allegation in paragraph 9.
10.
The facility is a
3,650
sow farrow-to-wean operation, comprised ofa gestation
building, breeding building,
a farrowing
building, a nursery and
a finishing building.
ANSWER:
Murphy admits the allegations in paragraph 10.
11.
Upon information and belief,
at the time of siting and construction ofthe facility,
Respondent Murphy knew what the capacity and size ofthe operation was to be and has since
supplied the 3,650 sows necessary to meet the design capacity ofthis
facility and keep it fully
operational.
ANSWER:
Murphy admits that it was aware ofthe design capacity ofthe Farm and
that itprovided
sows that were
raised at the
Farm, but denies each and every remaining
allegation in paragraph 11.
12.
At the time ofthe filing ofthe original Complaint in this matter, the livestock
waste management system being utilized at the facility was a multiple lagoon system designed
and, upon information and belief, operated by Bion Technologies, Inc. (“Bion”), a Colorado
corporation.
Swine waste and wastewater generated in the buildings was collected in
16-inch
deep pits under the buildings. The building pits were drained into the lagoon system. There were
four lagoons in the system that were operated in series. The third lagoon was divided into two
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(THIS FILING IS
MADE ON RECYCLED PAPER)
cells by
a synthetic curtain partition. The system utilized
four surface aerators.
There were two
five horsepower aerators in the first lagoon, one five horsepower aerator in the first cell of the
third lagoon and one three horsepower aerator in the second cell ofthe third lagoon.
Some of the
swine wastewater from the first cell ofthe third lagoon was recycled to the buildings as pit
recharge water. Wastewater in the third and fourth lagoon was land applied via a traveling gun
irrigation unit. According to B ion, swine waste solid sludge that accumulated in the second
lagoon was to be periodically land applied.
ANSWER:
Murphy admits that at the time the complaint was filed in this matter, (1) a
multiple-lagoon waste management system designed by Bion was in use at the Farm, (2) waste
was collected in
16-inch deep pits under certain ofthe buildings that housed hogs at the Farm,
(3) the pits were drained into the lagoon system, (4) the design of the lagoon system included
aerators in certain ofthe lagoons, and
(5)
the design ofthe waste treatment system called for
certain waste to be land-applied.
Further answering, Murphy lacks knowledge or information
sufficient to form a belief as to
the truth of the remaining allegations in paragraph 12
and
therefore denies each and every such allegation.
13.
According to
descriptions and explanations provided by Bion, the aerated and
non-aerated zones ofits multiple cell
lagoon system were designed to promote a dense
facultative biological environment that minimizes anaerobic volatization ofnitrogen, maximizes
nutrient settling in the solids, and maximizes output as nitrogen gas when volatization occurred.
Bion contended the system was managed by manipulating conditions to promote the evolution of
the microbial mix, so that an ideal microbial balance would be achieved that would maximize
nutrient assimilation in the solids and liquid waste that will eventually be land applied. Once the
desired microbial balance was achieved, according to Bion, the system is supposed to provide
adequate odor control due to the fact that the system is properly balanced and operating at full
potential.
ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth of the allegations in paragraph
13
and therefore
denies each and every such allegation.
14.
In order to achieve odor control, upon information and belief, the Bion multiple
lagoon system in existence at the facility at the time ofthe filing of the original Complaint,
according to claims made by Bion,
was either to be manually adjusted by Bion personnel and
Highlands personnel or able to adjust itself via its “dense facultative biological environment” to
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(THIS FILING IS MADE ON RECYCLED PAPER)
accommodate variations in the farm operational procedures, unexpected failures or fluctuations
in farm procedures,
and variations in climatic and weather conditions throughout the year.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 14
and therefore denies each and every such allegation.
15.
Upon information and
belief, Respondent Murphy was involved in the selection
ofthe Bion system as the means ofhandling and treating swine waste at the facility.
ANSWER:
Murphy denies each and every allegation in paragraph
15.
16.
Shortly after the filing of the original Complaint in this matter, Bion withdrew
from its contractual
obligations at the Highlands’ facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 16
and therefore
denies each and every such allegation.
17.
In April 2000, Respondents Highlands and Murphy began to convert the Highland
sic
facility’s lagoon system to a BioSun system.
The BioSun system utilizes the two large
lagoons ofthe original lagoon series. The two small lagoons that served as the entry point for the
waste stream in the Bion system, were taken out ofoperation but have never been cleaned out
and properly closed.
ANSWER:
Murphy admits that during 2000, Highlands began using
waste treatment
technology provided by BioSun, and that Highlands re-configured its waste treatment system
at
that time such that only two lagoons are used for waste treatment.
Further answering, Murphy
lacks knowledge or information sufficient
to form a belief as to
the truth ofthe remaining
allegations in paragraph
17 and therefore denies each and
every such allegation.
18.
Upon information and belief, construction ofthe facility began in the fall of 1997.
ANSWER:
Murphy admits the allegations in paragraph 18.
19.
Sows were first brought into the facility on December 21,
1997, at which time
operations commenced at the facility.
ANSWER:
Murphy admits that sows
were brought to
the Farm on December 21,
1997.
Further answering, Murphy lacks knowledge or information sufficient to form a belief as
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(THIS FILING IS MADE ON RECYCLED PAPER)
to the truth ofthe remaining allegations in paragraph 19 and therefore denies each and every
such allegation.
20.
Livestock waste was first diverted to
the multiple
lagoon system on December 28,
1997. At that time, the four lagoons had been constructed and the majority ofthe transferpiping
had been installed.
ANSWER:
Murphy admits that four lagoons had been constructed at the Farm on
December 28,
1997.
Further answering, Murphy lacks knowledge or information sufficient to
form a beliefas to
the truth ofthe remaining allegations in paragraph 20 and therefore denies
each and every such allegation.
21.
Sows first farrowed at the facility on May 11,
1998.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 21
and therefore
denies each and every such allegation.
22.
On June 2,
1998, a majority ofthe swine confinement buildings had been
constructed, and construction was underway on finishing and nursery buildings. Initial earthwork
for a second farrowing building was completed on June 2,
1998.
The second farrowing building,
at the time ofthe
filing ofthis complaint, has not been constructed.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 22 and therefore denies each and every such allegation.
23.
The Illinois Department ofAgriculture issued a Final Notice ofLagoon
Registration and Certification ofCompletion to Highlands on August 3,1998.
ANSWER:
Murphy admits the allegations in paragraph 23.
24.
Section 3.02 ofthe Act, 415 IICS
5/3.02 (1998), states:
“AIR POLLUTION” is the presence in the atmosphere ofone or more
contaminants in sufficient quantities and ofsuch characteristics and duration as to
be injurious to human, plant, or animal life, to health, or to property, or to
unreasonably interfere with the enjoyment oflife or property.
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(THIS FILING IS
MADE ON RECYCLED
PAPER)
ANSWER:
Murphy admits that paragraph 24 accurately sets forth the quoted language
of Section 3.02 of the Act.
25.
Section
3.06 of the Act, 415 ILCS
5/3.06
(1998), states:
“CONTAMINANT” is any
solid, liquid, or gaseous matter, any odor, or any form
of energy, from whatever source.
ANSWER:
Murphy admits that paragraph 25
accurately sets forth the quoted language
ofSection 3.06 ofthe Act.
26.
Section 9(a) of the Act, 415 ILCS
5/9(a)
(1998), provides, in pertinent part, as
follows:
No person shall
a)
Cause or threaten or allow the discharge or emission of any contaminant
into the environment in any State so as to cause or tend to cause air
pollution
in Illinois, either alone or in combination with contaminants
from other sources, or so as to
violate regulations or standards adopted by
the Board under this Act;
*
**
ANSWER:
Murphy admits that paragraph 26 accurately
sets forth the quoted language
of Section 9(a) ofthe Act.
27.
Section 501.4O2(c)(3) of the Board’s Agriculture
Related Pollution Regulations,
35 III. Adm.
Code 501 .402(c)(3) (1998), provides,
in pertinent part, as follows:
Location ofNew Livestock Management Facilities
and New Livestock Waste-
Handling Facilities
c)
3)
Adequate odor control methods and technology shall be practiced
by operators ofnew and existing livestock management
facilities
and livestock waste-handling facilities so as not to cause air
pollution.
ANSWER:
Murphy admits that paragraph 27 accurately sets forth the quoted language
of35
Ill. Admin.
Code Section 501.402(c)(3).
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(THIS FILING IS MADE ON RECYCLED PAPER)
28.
On numerous occasions, beginning in January 1998 and continuing
through the
present, the Respondents
have caused or allowed the emission ofoffensive hog odors from the
facility. These odors have unreasonably interfered with the enjoyment of life and property by
neighboring residents by preventing or disrupting outdoor activities and by invading or
penetrating their homes and vehicles causing physical discomfort, including in some
cases
gagging, nauseousness, sore and/or burning nose and throat, and headache.
Such physical
discomfort has also included the physical and emotional revulsion an individual might
experience when subjected to highly offensive odors.
ANSWER:
Murphy denies each and every allegation in paragraph 28.
29.
A neighbor who lives approximately
1/4 mile from the facility is asthmatic. Her
doctor has written a letter indicating any further expansion ofthe Highlands confinement
operation would cause the patient further discomfort. In the letter the doctor acknowledges that
allergens such as substances that may be coming from the confinement trigger her extreme
asthmatic reactions.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 29 and therefore denies each and every such allegation.
30.
All of the neighbor complainants impacted by the offensive odors lived on their
property prior to construction ofthe facility. A tornado struck the area on July 29,
1998. One of
the complainant families did not rebuild their home at its former location because odors from the
facility had so substantially interfered with the use and enjoyment ofthat property that the family
decided to
rebuild elsewhere. The family suffered a financial loss in choosing
not to rebuild at
the original location near the Highlands swine farm.
ANSWER:
Murphy denies that odors from the Farm substantially interfered with any
person’s use and enjoyment ofproperty.
Further answering, Murphy lacks knowledge or
information sufficient to form a belief as to the truth ofthe remaining allegations in paragraph 30
and therefore denies each and every such allegation.
31.
Between the months ofJanuary
1998 and December 1998, the Illinois EPA
received approximately 110 complaints of odor coming from the facility submitted by neighbors
ofthe facility. The following indicates how many days per monthneighbors experienced
unreasonably offensive odors coming from the facility between the months ofJanuary
1998
and
December 1998: January,
1
day; March,
3
days; April,
8 days; May,
11
days; June, 20 days; July,
11
days; August,
15
days; September,
14 days; October, 6 days; November, 9 days; December,
13 days. Collection and recording ofthe
1998 data was disrupted by the occurrence ofand
destruction caused by the tornado that moved through the area on July 29,
1998. Between the
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months ofJanuary
1999 and November 1999, the Illinois EPA received approximately
120
complaints ofodor coming from the facility submitted by neighbors ofthe facility. The
following indicates how many days per month two complainants experienced unreasonably
offensive odors from the facility between the months of January
1999 and November 1999:
January, 3 days; February, 6 days;
March, 4
days; April,
12 days; May,
10 days; June,
14 days;
July,
15 days; August,
17
days; September,
13 days;
October,
13 days; November,
14 days.
ANSWER:
Murphy denies that unreasonably offensive odors emanated from the
Farm.
Further answering, Murphy lacks knowledge or information sufficient to form a belief as
to the truth ofthe remaining allegations in paragraph 31
and therefore denies each and every
suchallegation.
32.
The home ofone ofthe complainants is located
1/4 mile from the facility. Other
complainants homes
are located approximately
1 mile from the facility. Despite regulatory
setback requirements ofat least 1/4 to
1/2 mile, research has shown that, on a case-by-case basis,
separation distances greater than
1/2 mile, and in some cases up
to
1
mile, are more appropriate
for large livestock facilities. In certain instances, even a
1
mile
separation distance
is not
sufficient.
ANSWER:
Murphy admits that the home of two alleged complainants identified by
the State of Illinois is located approximately one-quarter mile from the Farm, and that the homes
ofcertain other alleged complainants identified by the State of Illinois are located approximately
one mile from the Farm.
Further answering,
Murphy lacks knowledge or information sufficient
to form a belief as to the truth of the remaining allegations in paragraph 32 and therefore denies
each and every such allegation.
33.
On September 4,
1996, the Illinois EPA sent a letter to Mr. Doug Lenhart,
Director ofIllinois Operations for Murphy Family Farms, in response to his inquiries regarding
the siting ofa new swine production facility near Elmwood, Illinois. The Illinois EPA cited the
Title
35,
Subtitle B setback provisions in the letter and
included a statement that compliance with
these siting provisions affords no protection from possible enforcement action if the livestock
operation causes air pollution in violation ofSection 9(a) ofthe Illinois Environmental
Protection Act. The letter further stated that the description of the new facility provided by Mr.
Lenhart indicated that a potential forpossible odor problems does exist due to the magnitude of
the operation and therefore careful consideration should be given to location, waste management
and odor control methods.
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ANSWER:
Murphy admits that the Illinois EPA sent a letter dated September 4,
1996
to Doug Lenhart who was employed by Murphy.
Further answering, Murphy states that the
letter speaks for itself and denies each and every remaining allegation
in paragraph 33.
34.
On May 20,
1997, the Illinois EPA sent a letter to James Baird with regard to a
new swine facility Mr. Baird planned on constructing near Williamsfield, which eventually was
constructed as the Highlands and Murphy facility. The Illinois EPA cited the Title
35,
Subtitle E
setback provisions in the letter and included a statement that compliance with these siting
provisions affords no protection from possible enforcement action if the livestock operation
causes air pollution in violation ofSection 9(a) ofthe Illinois Environmental Protection Act.
The
letter further stated that the description provided by Mr. Baird ofthe new facility indicated that a
potential forpossible odor problems does exist due to the magnitude ofthe operation and
therefore careful consideration should be given to location, waste management and odor control
methods. The May 20,
1997 letter further stated that the Illinois EPA had been involved with
situations
where offensive odors were reportedly detected two to three miles from swine
production and/or waste handling facilities and, therefore, the Illinois EPA recommends locating
larger livestock facilities at greater setback distances than the minimum distances.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 34 and therefore denies each and every such allegation.
35.
On April 23,1998, the Illinois
EPA inspected the facility in response to
livestock
odor complaints from citizens who lived between
1/4 of a mile to
1
1/2 miles
away from the
facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 35
and therefore denies each and every such allegation.
36.
At the time ofthe April 23,
1998 inspection, Douglas Baird confirmed that a
strong swine waste odor had been produced during the start-up period for the facility’s system.
Mr. Baird informed the inspector that the start-up ofthe treatment system would not be
completeduntil all lagoons in the multiple lagoon system reached their design operating level.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 36 and therefore denies each and every such allegation.
37.
On April 23,1998, the Illinois EPA inspector experienced a strong swine waste
odor near the lagoon system during the inspection.
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ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 37 and therefore denies each and every suchallegation.
38.
On May 29,
1998, the Illinois EPA issued a Noncompliance Advisory Letter to
Highlands. The letter cited apparent violations of Section 9(a) ofthe Act, 415
ILCS
5/9(a),
general prohibition against air pollution, and
35 III. Adm.
Code 501 .4O2(c)(3), failure to employ
adequate odorcontrol methods and technology.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 38
and therefore denies each and every such allegation.
39.
On June 2,
1998, the facility was again inspected by the Illinois EPA. The
inspector experienced a swine waste odor near the lagoon system and along a stream basin just
downwind ofthe facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 39 and therefore denies each and every such allegation.
40.
During the June 2,
1998 inspection, Douglas Baird again indicated that the odors
would be addressed when the Bion biological treatment system was completed. On June 2,
1998,
the majority ofthe components in the system had been installed and the system was operational.
The multiple lagoons were very close to their design operating level and three ofthe four floating
surface aerators planned forthe system were installed. The floating baffle between the two
components ofthe third lagoon was being installed at the time ofthe inspection.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 40 and therefore denies each and every such allegation.
41.
In his report for the June 2,
1998 inspection, the Illinois EPA inspector indicated
that the addition ofthe fourth aerator in the third lagoon may not prove sufficient to provide
necessary odor control. The inspector also stated in his report that the first and second lagoon
may have to be covered and the three influent line inlets
into the first lagoon submerged to obtain
further odor control. He also recommended that odors produced by the confinement building
ventilation system be monitored.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 30 and therefore denies each and every such allegation.
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42.
On June 8,
1998, Douglas Baird sent
a letter to the Illinois
EPA in response to the
noncompliance advisory letter. On June
17,
1998, the Illinois EPA responded to Mr. Baird’s
letter of June 8,1998, and indicated that Mr. Baird’s response did not sufficiently address the
apparent violations because it failed to provide a timetable for completing action(s) necessary to
eliminate offensive odor emissions.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 42 and therefore
denies each and every such allegation.
43.
On June 12,
1998, the Illinois EPA conducted another inspection ofthe facility in
response to
continuing odor complaints from neighbors ofthe facility. At the time ofthe
inspection, approximately
3,650
sows were on site at the facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 43 and therefore denies each and every such allegation.
44.
At the time ofthe June 12,
1998 inspection, the inspector experienced a very
strong
swine waste odor downwind of the facility at the Roy Kell residence, approximately
1/4
mile from the facility. The odor was present even though the Bion system was operational.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 44 and therefore denies each and every such allegation.
45.
At the time ofthe June
12,
1998 inspection, Roy Kell indicated the odor was
presentmost ofthe time at his home, since his home is locatedjust east ofthe facility and the
prevailing winds are out ofthe
southwest.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 45 and therefore denies each and every such allegation.
46.
On June
17,
1998, the Illinois EPA conducted another inspection of the facility.
At the time of the inspection, approximately
3,650 sows were on site at the facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 46 and therefore denies each and every such allegation.
47.
During the June
17,
1998 inspection, the inspector experienced swine waste odor
approximately
1
1/4 mile downwind north ofthe facility along County Highway 11
(1200N). At
the time this odor was experienced, the facility’s Bion system was operational.
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ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 47
and therefore denies each and every such allegation.
48.
During the June 17,
1998 inspection, the inspector experienced a strong
odor on
the site ofthe facility around the confinement buildings and the waste treatment system.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 48 and therefore
denies each and every such allegation.
49.
On June
25,
1998, the Illinois
EPA conducted another inspection ofthe facility in
response to continuing odor complaints from neighbors of the facility. At about 2:00 P.M. on the
date ofthis inspection, the inspector experienced a strong and offensive swine facility odor while
on County Highway
11(1200 N) near Township Road 2200E. The wind was out ofthe south-
southwest at that time. The said location is approximately
1
1/4 mile northeast ofthe facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 49 and therefore denies each and every such allegation.
50.
At approximately 2:30 P.M.
on June
25,
1998, the inspector returned to the same
location where he experienced strong swine facility odorat 2:00 P.M. on that date. He again
experienced a strong and offensive swine facility odor at the location. A distinct odor was
present in a relatively narrow band a few hundred yards wide along County Highway 11
near
Township Road 2200E. The facility was determined to be
the source ofthe offensive swine
facility odors at the said location at 2:00 P.M. and 2:30 P.M.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 50 and therefore denies each and every such allegation.
51.
At the time ofthe inspection on June
25,
1998, no swine facility odorwas
detected while on the upwind side ofthe facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 51
and therefore denies each and every such allegation.
52.
On July
14 ,1998, the Illinois EPA sent Highlands
and Murphy a Violation Notice
pursuant to Section
31 (a)(1) of the Act, 415 ILCS 5/31 (a)( 1). The notice cited apparent
violations of Section 9(a) ofthe Act, 415
ILCS
5/9(a),
and 35 III. Adm. Code 50l.402(c)(3).
ANSWER:
Murphy admits the allegations in paragraph
52.
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53.
On July 29,
1999
sic,
Respondent Murphy sent the Illinois EPA a letter in
response to the July
14,
1998 Violation Notice denying ownership in or management
responsibility
for the facility.
ANSWER:
Murphy admits that it sent a letter dated July 29,
1998 to Illinois EPA.
Further answering, Murphy states that the letter speaks for itself and denies each and every
remaining allegation in paragraph
53.
54.
On August 28,
1998, the Illinois EPA rejected Respondents Murphy’s
response
dated July 29,
1999 as an acceptable Compliance Commitment Agreement (“CCA”) on the basis
that the response failed to commit to any
corrective actions to
address the odorviolations.
ANSWER:
Murphy admits that it received a letter dated August 28,
1998 from the
Illinois EPA.
Further answering, Murphy states that the letter speaks for itself and denies each
and every remaining allegation in paragraph
54.
55.
On September 4,
1998, Respondent Murphy, by its counsel, Reef C. Ivey II,
representing Murphy Family Farms ofNorth Carolina, addressed a letter to the Illinois EPA
wherein it was stated that Murphy’s response ofJuly 29,
1998 was not a proposed CCA, and that
Murphy could not have violated any statutes or regulations in Illinois because it did not own or
operate a swine confinement facility in Illinois.
The letter further stated that although Murphy
believed it unnecessary for it to appear at a meeting with the Illinois EPA, it was requesting the
opportunity for its representative to
attend a scheduled meeting between Highlands and the
Illinois EPA.
ANSWER:
Murphy admits that its
counsel sent a letter dated September 4,
1998 to
Illinois EPA.
Further answering, Murphy states that the letter speaks for itself and denies each
and every remaining allegation in paragraph
55.
56.
On September 11,1998, the Illinois EPA met with Highlands and Murphy
pursuant to the requirements of Section 31(a) ofthe Act, 415 ILCS
5/31(a).
A representative of
Bion also attended the meeting.
ANSWER:
Murphy admits that Highlands, Murphy, and Bion met with
representatives ofthe Illinois
EPA on
September
11, 1998.
Further answering, Murphy lacks
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knowledge or information sufficient to form a belief as to the truth ofthe allegations in
paragraph
56
and therefore denies each and every such allegation.
57.
On October
1,
1998,
the Illinois EPA received a letter dated September 30,
1998,
from Highlands that contained a proposed CCA. In its
September 30,
1998 letter, Respondent
Highlands represented that the Bion system
fully “came on line” June 29,
1998 and would
require additional time to maximize its
efficiency.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 57 and therefore denies each and every such allegation.
58.
On October 28,
1998, the Illinois EPA rejected Respondent Murphy’s October 1,
1998 response on the basis that it did not provide any additional information for reconsideration.
ANSWER:
Murphy admits that it received a letter dated October 28,
1998 from the
Illinois
EPA.
Further answering, Murphy states that the letter speaks for itself and denies each
and every remaining allegation in paragraph
58.
59.
On October 28,
1998, the Illinois EPA rejected Respondent Highlands’
proposed
CCA on the basis that scheduled and proposed odor control measures appeared to be
inadequate
to remedy the odorproblem. Further, the Illinois EPA indicated that even though additional
odor
control measures may be identified as a result ofa scheduled on-site evaluation by
manure/nutrient management consultant Leonard Meador, the CCA failed to provide any
specifics as to what and when additional odor control measures would be implemented as a result
ofthe evaluation.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 59 and therefore denies each and every such allegation.
60.
On November 30,
1998, the Illinois EPA received a letter dated November
25,
1998 from Respondent Highlands that included implementation schedules for odor control
measures recommended as the result ofthe on-site evaluation performed by Leonard Meador,
with a request that the said schedules would be
considered as a newly proposed CCA.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 60 and therefore
denies each and every such allegation.
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61.
On December 22,
1998, the Illinois EPA conducted another inspection ofthe
facility. During the inspection wastewater samples were collected from six
locations in the
lagoon system and the general condition ofeach lagoon was observed. Dissolved oxygen
measurements and temperature readings were taken from each ofthe four lagoons. The sample
results indicated that the first three lagoons ofthe system were in
an anaerobic state.
ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth ofthe allegations in paragraph 61
and therefore denies each and every such allegation.
62.
At the time ofthe December 22,
1998 inspection, the inspector observed that at an
inlet pipe to the first cell which directs swine waste from the breeding/farrowing buildings, the
pipe was discharging a dark colored, turbid liquid with a very strong swine waste odor. At the
time ofthe sampling, Douglas Baird indicated that pressure washing was occurring in the
farrowing unit and therefore the sample collected was not necessarily representative of the
normally concentrated wastewater.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 62 and therefore
denies each and every such allegation.
63.
At the time ofthe December 22,
1998 inspection, the first lagoon ofthe system
contained turbid liquid that had a very strong swine waste odor. A 2-inch frozen manure crust
existed over the surface ofthe lagoon except in the vicinity ofthe two surface aerators and the
inlet pipes.
Laboratory analysis of a sample taken from the first
lagoon in the system indicated
2430 milligrams per liter (“mg/I”) biochemical oxygen demand (“BOD”) and 712 mg/I
ammonia.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 63
and therefore denies each and every such allegation.
64.
At the time ofthe December 22,
1998 inspection, the second lagoon in the system
contained wastewater that was very turbid and had a distinct reddish color and a very strong
swine waste odor. Laboratory data from a sample taken in the second lagoon revealed a BOD
level of 1,090
mg/I and 484 mg/I ammonia-nitrogen.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 64 and therefore denies each and every such allegation.
65.
At the time ofthe December 22,
1998 inspection, the first cell ofthe third lagoon
contained wastewater that was very turbid, had a reddish color and had a very strong
swine waste
odor.
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ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth ofthe allegations in paragraph 65
and therefore denies each and every such allegation.
66.
At the time ofthe December 22,
1998 inspection, wastewater in the second cell of
the third lagoonwas very turbid, reddish in color and had a very strong swine waste odor.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 66 and therefore denies each and every such allegation.
67.
It is the wastewater from the third lagoon, which on the date ofthe December 22,
1998 inspection had a very strong swine waste odor, that
is recycled back to the confinement
buildings as flush water.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 67 and therefore
denies each and every such allegation.
68.
At the time of the December 22,
1998 inspection, the fourth lagoon contained a 2-
inch thick ice cover. Liquid in the fourth lagoon was turbid with a strong swine waste odor.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 68
and therefore
denies each and every such allegation.
69.
At the time of the December 22,
1998 inspection, the inspector experienced swine
waste odors at the lagoons and he experienced a strong swine odor immediately
east ofthe swine
confinement buildings. Weather conditions on this date were very cold with a temperature of
about
5
degrees Fahrenheit and wind out of the west.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 69 and therefore denies each and every such allegation.
70.
On January 12,
1999, the Illinois EPA issued Respondent Highlands and
Respondent Murphy a Notice of Intent to Pursue Legal Action, pursuant to
Section 31(b) of the
Act, 415
ILCS
5/31(b).
ANSWER:
Murphy admits the allegations in paragraph 70.
71.
On February 4,
1999, a meeting was held pursuant to the requirements ofSection
31(b). Representatives ofHighlands, Murphy and Bion Technologies, Inc. attended the meeting.
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ANSWER:
Murphy admits that Murphy, Highlands, and Bion attended a meeting with
representatives ofthe Illinois EPA
on February 4,
1999.
Murphy lacks knowledge or
information sufficient to form a belief as to
the truth ofthe remaining allegations in paragraph 71
and therefore denies each and every such allegation.
72.
On February 22,
1999, the Illinois EPA received a letter from Mr. Ivey
representing Murphy Family Farms ofNorth Carolina dated February 17,
1999, that again
indicated that Murphy did not own or operate a swine confinement facility in the State ofIllinois,
and claiming that the State ofIllinois did not havejurisdiction over Murphy in this matter.
ANSWER:
Murphy admits that its counsel sent a letter dated February
17,
1999 to the
Illinois EPA.
Further answering, Murphy states that the letter speaks for itself and denies each
and every remaining allegation in paragraph 72.
73.
On February 22,
1999, the Illinois EPA received a letterfrom Respondent
Highlands dated February
19,
1999,
stating that the Highlands was continuing to investigate and
consider every technically feasible and economically reasonable measure to reduce odors at the
facility. The Highlands’
letter also called into question the validity ofthe neighbors’
complaints.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 73
and therefore denies each and every such allegation.
74.
On July 30,
1999, at the invitation of the facility, the Illinois EPA performed a site
inspection ofthe facility.
During the inspection, wastewater samples were collected from six
locations in the lagoon system and the general condition of each cell was observed.
Wastewater
samples were
split with the Respondents.
ANSWER:
Murphy admits that representatives ofthe Illinois EPA conducted an
inspection ofthe Farm on July 30,
1999, and that those representatives collected samples and
split those samples with Respondent Highlands.
Further answering, Murphy lacks knowledge or
information sufficient to form a belief as to the truth ofthe remaining allegations in paragraph 74
and therefore
denies each and every such allegation.
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75.
A strong waste odor was experienced at each lagoon. A strong ammonia odor was
experienced emanating from the lagoon system. At the time of the July 30,
1999 inspection, the
first three lagoons in the system were anaerobic.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 75
and therefore denies each and every such allegation.
76.
At the time ofthe July 30,
1999 site inspection,
offensive swine farm and swine
waste lagoon odors were experienced downwind of the facility along the east-west road
immediately north ofthe facility and along Township Road 2200 East (the north-south gravel
road immediately northeast of the facility) (Elba Township). Township Road 2200
is the road in
front ofthe Kell residence.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 76 and therefore denies each and every such allegation.
77.
During the July 30,
1999 site inspection, odors were detected within and around
the confinement buildings and downwind ofthe lagoons. The odors were of sufficiently similar
character to those smelled along Township Road 2200
East to establish that the facility is the
source ofthe observed offensive odors. Weather conditions on that date, July 30,
1999, were
very hot and humid with a temperature of approximately
95
degrees Fahrenheit. A gentle,
variable wind was coming out ofthe west and southwest.
ANSWER:
Murphy admits that the temperature at the time of the inspection on July
30,
1999 was approximately
95
degrees Fahrenheit.
Murphy lacks knowledge or information
sufficient to form a belief as to the truth ofthe remaining allegations in paragraph 77 and
therefore denies each and every such allegation.
78.
During the July 30,
1999 site inspection, the waste treatment system was in
operation and all ofthe lagoons were
filled to operating level. The mechanical surface aerators
were in operation in the various lagoons. Wastewater from the fourth lagoon was being applied
to cropland west ofthe swine facility via a traveling gun irrigation unit.
ANSWER:
Murphy admits that during the July 30,
1999 inspection, the lagoons were
filled to operating level,
the aerators were operating, and Highlands was land-applying waste
from the fourth cell ofthe waste treatment system using a traveling gun irrigation unit.
Murphy
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lacks knowledge or information sufficient to form
a belief as to the truth ofthe remaining
allegations in paragraph 78 and therefore denies each and every such allegation.
79.
There had been a recent electrical storm in the area prior to the July 30,
1999 site
inspection, during which time the power failed at the facility. Representatives of Respondent
Highlands indicated that due to the power failure, the aerators had worked only
8 ofthe past 36
hours. Respondent Highlands claimed that the odorwas more intense that day due to the power
failure. Upon information and belief, the swine facility had no backup power source for the
aerators.
ANSWER:
Murphy admits the allegations in paragraph
79.
80.
The facility is a continuous source of offensive odors both from the confinement
buildings and the Bion system. These two odor sources are related to the Respondents’
choice
and design of the buildings and waste treatment system.
ANSWER:
Murphy denies each and
every allegation in paragraph 80.
81.
Alternate waste treatment facility designs were available at the time of
construction ofthe facility that are capable ofpreventing the release ofodors to the extent noted
during the July 30,
1999
site inspection.
ANSWER:
Murphy denies each and every allegation in paragraph 81.
82.
Even though the facility met the minimum setback requirements, the facility was
constructed with inadequate separation from the residence approximately one
quarter mile to the
east. It is unlikely that, for the number ofhogs
(3,650
sows) in this facility, the application of
conventional waste managementpractices will prevent the residents living one quarter mile east
ofthe facility from experiencing odors at an intensity and
frequency that interfere with the
enjoyment oftheir home.
ANSWER:
Murphy admits that the Farm met the applicable
setback requirements, but
denies each and every remaining allegation in paragraph 82.
83.
Among the alternatives to reduce the odor intensity from the existing facility are
the following: provide a cover for the first two lagoons of the existing lagoon system to prevent
the escape ofodorous gases and provide sufficient aeration to
avoid anaerobic conditions
in the
third and
fourth lagoons; capture and flare (and/or utilize) gas from the entire waste management
system; provide a cover for the first three lagoons and provide sufficient aeration to maintain the
fourth lagoon in an aerobic condition; replace the first lagoon of the existing lagoon system with
an enclosed, temperature controlled anaerobic digester and provide sufficient aeration to the
second and subsequent lagoons to maintain aerobic conditions; replace all three ofthe first
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lagoons with an enclosed, temperature controlled anaerobic digester and maintain the fourth
lagoon in an aerobic state; provide for twice weekly draining ofthe underfloor manure storage
pits and re-filling with odor free water with a dissolved oxygen concentration in excess of2.0
mg/I; provide adequate filtration for exhaust air generated at the swine confinement buildings;
reduce organic loading on the treatment system by reducing the population ofhogs
in the facility.
ANSWER:
Murphy denies each and
every allegation in paragraph 83.
84.
The Illinois EPA continues, to this
date, to receive complaints from neighbors of
the facility ofoffensive odors emanating from the facility that are causing unreasonable
interference with the use and enjoyment ofproperty.
ANSWER:
Murphy denies that offensive odors emanate from the facility which cause
unreasonable interference with the use and enjoyment of property.
Further answering,
Murphy
lacks knowledge or information sufficient to form a belief as to the truth ofthe remaining
allegations in paragraph 84 and therefore denies each and every such allegation.
85.
By causing or allowing strong, persistent and offensive hog odors to emanate
from the facility that unreasonably interfere with the use and enjoyment of the neighbors’
property, Respondents Highlands and Murphy have caused air pollution, thereby violating
Section 9(a) ofthe Act, 415 ILCS
5/9(a)(l998).
ANSWER:
Murphy denies each and every allegation in paragraph
85.
86.
By failing to practice adequate odor control methods and technology at its new
livestock management facility and livestock waste-handling facility, thereby causing air
pollution,
Respondents Highlands and Murphy have violated 35 III. Adm. Code 501
.402(c)(3)(1998).
ANSWER:
Murphy denies each and every allegation in paragraph 86.
WHEREFORE, Murphy respectfully requests that the Board enterjudgment in Murphy’s
favor and against Complainant, that it enteran order dismissing Count I ofComplainant’s
Second Amended Complaint with prejudice, and that it grant such other and further relief as the
Board deems just and proper.
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COUNT II
WATER POLLUTION VIOLATIONS
1.
This Count is brought on behalfofthe People ofthe
State of Illinois,
ex rel.
Lisa
Madigan, the Attorney General ofthe State ofIllinois, on her own motion pursuant to Sections
42(d) and (e) ofthe Illinois Environmental Protection Act (“Act”), 415
ILCS 5/42(d), (e)
(2000).
ANSWER:
Murphy admits that Count II is brought by the Attorney General ofthe
State ofIllinois on behalfofthe People ofthe
State ofIllinois pursuant to Sections 42(d) and (e)
ofthe Act.
Further answering, Murphy lacks knowledge or information sufficient to form a
belief as to the truth ofthe remaining allegations in paragraph
1
and therefore denies each and
every such allegation.
2-7.
Complainant realleges and incorporates by reference herein paragraphs 4 through
8 and paragraph
10 ofCount I as paragraphs
2 through 7 ofthis Count II.
ANSWER:
Murphy restates and incorporates by this reference as though fully
set
forth herein its
answers to paragraphs 4 through
10 ofCount I as its answers to paragraphs 2
through 7 ofCount II.
8.
The livestock waste management system utilized at the facility, prior to December
21,
1999, was a multiple lagoon system designed and,
upon information and belief, operated by
Bion Technologies, Inc.
(“Bion”), a Colorado corporation.
Swine waste and wastewater
generated in the buildings is collected in
16-inch deep pits under the buildings. The building pits
are drained into the lagoon system. There were four lagoons in the system that were operated in
series. The third lagoonwas divided
into two cells by a synthetic curtain partition.
Some ofthe
swine wastewater from the first cell ofthe third lagoon is recycled to the buildings as pit
recharge water. Wastewater in the third and fourth lagoon was land applied via a traveling gun
irrigation unit. Swine waste solid
sludge that accumulated in the second lagoon was to
be
periodically land applied.
ANSWER:
Murphy admits that prior to
December 21,
1999, (1) a multiple-lagoon
waste management
system designed by Bion was in use at the Farm,
(2) waste was collected in
16-inch deep pits under certain ofthe buildings that housed hogs at the Farm, (3) the pits
were
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drained into the lagoon system, and (4) the design ofthe waste treatment system called for
certain waste to be land-applied.
Further answering, Murphy lacks knowledge or information
sufficient to form a belief as to
the truth ofthe remaining allegations in paragraph
12 and
therefore denies each and every such allegation.
9.
Shortly afterthe
filing ofthe original Complaint in this matter, Bion withdrew
from its
contractual obligations at the Highlands’ facility.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 9 and therefore denies each and every such allegation.
10.
In April 2000, Respondents began to convert the Highland facility’s lagoon
system to a BioSun system. The BioSun system utilizes the two large lagoons ofthe original
lagoon series. The two small lagoons that served as the entry point for the waste stream in the
Bion system,
were taken out ofoperation but have never been cleaned out and properly closed.
ANSWER:
Murphy admits that during
2000, Highlands began using
waste treatment
technology provided by BioSun, and that Highlands re-configured its waste treatment system at
that time such that only two lagoons are used for waste treatment.
Further answering, Murphy
lacks knowledge or information sufficient to
form a belief as to the truth ofthe remaining
allegations in paragraph
10 and therefore denies each and every such allegation.
11.
Wastewater in the second and final lagoon is land applied via a traveling gun
irrigation unit.
ANSWER:
Murphy admits that the design of the waste treatment system that utilized
waste treatment technology provided by BioSun called for land application ofcertain waste.
Further answering, Murphy lacks knowledge or information sufficient to form a belief as to the
truthofthe allegations in paragraph 11
and therefore denies each and every such allegation.
12.
Section 3.55 ofthe Act, 415
ILCS 5/3.55 (2000), provides:
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“WATER POLLUTION” is such alteration ofthe physical, thermal, chemical,
biological or radioactive properties ofany waters ofthe
State, or such discharge
of any contaminant into waters of the State, as will or is likely to create
a nuisance
or render such waters harmful or detrimental or injurious to public health,
safety
or welfare, or to domestic, commercial, industrial, agricultural, recreational, or
other legitimate uses, or to livestock, wild animals, birds,
fish, or other aquatic
life.
ANSWER:
Murphy admits that paragraph
12 accurately sets forth the quoted language
ofSection
3.55
ofthe
Act.
13.
Section
3.56
ofthe Act, 415 ILCS
5/3.56
(2000), provides:
“WATERS” means
all accumulations ofwater, surface and underground, natural,
and artificial, public and private, or parts thereof, which are wholly or partially
within, flow through, or border upon this State.
ANSWER:
Murphy admits that paragraph 13
accurately
sets forth the quoted language
ofSection
3.56
of the Act.
14.
Section 3.06 ofthe Act, 415 ILCS
5/3.06
(2000), provides:
“CONTAMiNANT” is any solid, liquid, or gaseous matter, any odor, or any form
ofenergy, from whatever source.
ANSWER:
Murphy admits that paragraph 14 accurately sets forth the quoted language
ofSection 3.06 ofthe
Act.
15.
Section 12(a),
(d) and (1) ofthe Act, 415 ILCS
5/12(a),
(b), (f) (2000), provides,
in pertinent part:
No person shall:
a.
Cause or threaten or allow the discharge ofany contaminants into the
environment in any
State so as to cause or tend to
cause water pollution in Illinois,
either alone or in combination with matter from other sources, or so as to violate
regulations or standards adopted by the Pollution Control Board under this Act;
***
d.
Deposit any contaminants upon the land in such place and manner so as to create
a water pollution hazard;
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f.
Cause, threaten or allow the discharge ofany contaminant into the waters ofthe
State, as defined herein, including but not limited to, waters to
any sewage works,
or into any well or from any point source withinthe state, without an NPDES
permit for point source discharges issued by the Agency under Section
39(b) of
this Act, or in violation ofany term or condition imposed by such permit, or in
violation ofany NPDES permit filing requirement established under Section
3 9(b), or in
violation ofany regulations adopted by the Board or of any order
adopted by the Board with respect to the NPDES program.
ANSWER:
Murphy admits that paragraph 15 accurately sets forth the quoted language
ofSections
12(a), (d), and (f) ofthe Act.
16.
Section 302.203 ofthe Illinois Pollution Control Board’s (“Board”) water
pollution regulations, 35 III. Adm. Code 302.203, provides:
Waters ofthe State shall be free from sludge or bottom deposits,
floating debris,
visible oil, odor, plant or algal growth, color or turbidity ofother than natural
origin.
ANSWER:
Murphy admits that paragraph 16 accurately
sets forth the quoted language
of 35 Ill. Admin.
Code Section 302.203.
17.
Section 302.2 12(a) and
(b) ofthe Board’s water pollution regulations, 35 III.
Adm.
Code 302.2 12(a) and (b), provide, in pertinent part:
a)
Total ammonia nitrogen (as N:STORET Number 00610) shall in no case
exceed
15 mg/L.
b)
Un-ionized ammonia nitrogen (as N:STORET Number 00612) shall not
exceed the acute and chronic standards given below subject to the
provisions ofSection 302.208(a) and (b), and
Section 302.2 13 ofthis Part.
1)
From April through October, the Acute Standard (AS) shall be
0.33
mg/L and the Chronic Standard (CS) shall be 0.057 mg/L.
2)
From November through March, the AS shall be 0.14 mg/L and
the CS shall be 0.025 mg/L.
ANSWER:
Murphy admits that paragraph
17 accurately sets forth the quoted language
of35
Ill. Admin.
Code Sections 302.2 12(a) and (b).
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18.
Section 501.405(a) ofthe Subtitle E: Agriculture Related Pollution Regulations,
35 III. Adm.
Code 50 1.405 (a), provides, in pertinent part, as follows:
Section 501.405.
Field Application ofLivestock Waste
a)
The quantity oflivestock waste applied on soils shall not exceed a
practical limit as determined by soil type, especially its permeability, the
condition (frozen or unfrozen) ofthe soil, the percent slope ofthe land,
cover mulch, proximity to surface
waters and likelihood ofreaching
groundwater, and other relevant considerations. These livestock waste
application guidelines will be
adopted pursuant to Section 502.305, unless
otherwise provided for by Board regulations.
ANSWER:
Murphy admits that paragraph 18 accurately sets forth the quoted language
of35 Ill. Admin. Code Section
501.405(a).
19.
Section 580.105 of the Subtitle E: Agriculture Related Pollution Regulations, 35
III. Adm. Code 580.105, provides, in pertinent part, as follows:
Method ofReporting a Release ofLivestock
Waste
a)
An owner or operator ofa livestock waste lagoon shall report any release
oflivestock waste from the livestock waste handling facility or from the
transport oflivestock waste by means oftransportation equipment within
24 hours after the discovery of the release.
Reports of releases to surface
waters, including to sinkholes, drain inlets,
broken subsurface drains or
other conduits to groundwater or surface waters, shall be
made upon
discovery ofthe release,
except when such immediate notification will
impede the owner’s
or operator’s response to correct the cause ofthe
release or to
contain the livestock waste, in which case the report shall be
made as soon as possible but no later than 24 hours after discovery.
ANSWER:
Murphy admits that paragraph 19 accurately
sets forth the quoted language
of35
Ill. Admin.
Code Section 580.105.
20.
On June
19, 2002, Respondents Highlands and Murphy reported a release of
livestock waste to the Illinois Emergency Management Agency (“IEMA”). The Highlands
reported that the release occurred on June
18, 2002.
The release resulted from the land
application ofwaste from the facility.
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ANSWER:
Murphy denies that it reported a release of livestock waste to
IEMA at any
time.
Further answering, Murphy lacks knowledge or information sufficient to form a belief as
to the truth of the remaining allegations in paragraph 20 and therefore denies each and every
such allegation.
21.
The waste discharged to an unnamed tributary ofFrench Creek. The waste
entered the unnamed tributary at the outlet oftwo
field tiles south of Interstate Highway 1-74.
One tile comes from the west and the other comes from the north.
At approximately 2:00 P.M.
on June
18, 2002, a neighbor ofthe Highlands
facility observed that the discharge from the west
tile was clear, and the discharge from the northerly tile was flowing red. The unnamed tributary
was flowing red.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 21
and therefore denies each and every such allegation.
22.
Respondents Highlands and Murphy were land applying waste from the facility
via a traveling gun irrigation unit on June
18, 2002. The waste was being applied to a portion of
a soybean field on the west side ofthe facility’s lagoons. The entire soybean field is a halfmile
long by a quarter mile wide and consists of 79 acres.
The operator ofRespondents’ facility told
inspectors that he began spray irrigating at approximately 8:00 A.M.
on the morning ofJune
18,
2002, in the soybean field, and shut off the tractor/pump irrigationunit at about
1:00 P.M. that
day. During the irrigation, he observed the irrigation gun had not traveled as far as it normally
would through the spray field.
ANSWER:
Murphy denies that it land-applied waste from the Farm at any time, and
that the Farm is Murphy’s.
Further answering, Murphy lacks knowledge or information
sufficient to form a belief as to the truth of the allegations in paragraph 22
and therefore denies
eachand every such allegation.
23.
Upon notification ofthe release on June
19, 2002, the lllinois EPA investigated
the release site. At the time ofthe inspection, the Illinois EPA inspectors observed that it was
apparent that wastewater was recently spray irrigated on the southeast portion ofthe soybean
field. Dry field conditions were observed except in the irrigation area where
wet, muddy field
conditions existed. Aluminum irrigation pipe extended westward from the Respondents’
lagoons
and into the field. The piping extended to
a hose reel and traveling gun irrigation unit located in
the field. Puddles ofred-colored lagoon wastewater were observed in the field.
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ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth ofthe allegations in paragraph 23
and therefore denies each and every such allegation.
24.
At the time ofthe June
19, 2002, inspection, inspectors observed that an eroded,
wet channel existed in the soybean field and extended south
in the cornfield where the inspectors
observed field conditions that indicated that surface runoffhad recently flowed. The surface of
the cornfield was dry except in the eroded channel/waterway area. The channel extended south
to
the southern edge of the cornfield where Interstate 74 borders the field. At this location the
wetted area fanned out and the wastewater entered a buried field tile and flowed under
Interstate
74. An outlet was observed on the south side ofInterstate 74 at a location south and east ofthe
channel in the cornfield. On the south side ofthe Interstate, the inspectors observed that dead
earthworms were prevalent in the small receiving stream. From this location, direction offlow is
south. The Illinois
EPA inspectors observed numerous dead small fish in the receiving stream.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 24 and therefore denies each and every such allegation.
25.
In the course of the investigation, the Illinois EPA inspectors were informed by
the operator ofthe Highlands facility that no actions were taken to pump out, barricade or
otherwise stop the release once the facility became aware ofthe release which was at
approximately 4:45 P.M.
on July
18, 2002. The release was not reported to IEMA until
approximately 9:15 A.M. on June
19, 2002. The owner and operator of the Highlands reported
the waste had dissipated and there was nothing to contain. The Illinois EPA received notification
from IEMA at approximately 9:55 A.M. on June 19, 2002.
Upon arrival at the release site,
Illinois EPA inspectors recognized that the unnamed tributary had suffered a fish kill and they
immediately contacted the Illinois Department of Natural Resource (“Illinois DNR”) to conduct
a fish kill
investigation.
ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth ofthe allegations in paragraph 25 and therefore denies each and every such allegation.
26.
An Illinois DNR fisheries biologist conducted a fish kill investigation on July
19,
2002.
The biologist estimated that approximately 6,600
fish were killed by the release.
The
species killed included seven minnow species, two species ofdarter and green sunfish. The
biologist observed that the liquid swine manure spill was sufficient
in quantity to kill all fish and
crayfish in the
1.54 mile length ofthe tributary and that the dead fish observed at the five count
stations were killed in an estimated time period of 6
to 24 hours prior to his investigation.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 26 and therefore denies each and every such allegation.
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27.
At the time of the July
19, 2002, inspection, and during subsequent inspections on
July 24 and July 25, 2002, stream samples were collected at various locations at the site of the
discharge, and along the receiving waters.
Samples collected at the time of the July
19, 2002,
inspection indicated total ammonia levels of 17 mg/L and 20 mg/L at locations downstream of
the release in the unnamed tributary to French Creek. Temperature and pH measurements
indicate the existence ofconditions that would result in exceedance of the acute standard for
unionized ammonia.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 27 and therefore denies each and every such allegation.
28.
By failing to follow the Illinois EPA rules which require immediate reporting of
releases to surface waters, set forth as 35 III. Adm.
Code 580.105, the Respondents failed to
exercise proper due diligence
in mitigating this release. Early notification may have allowed the
Illinois EPAto investigate the release a day earlier which, in turn, may have allowed for
implementation ofcorrective action to minimize the impact of the release.
ANSWER:
Murphy denies each and every allegation in paragraph 28.
29.
By causing or allowing the discharge of livestock waste to the unnamed tributary
ofFrench Creek so as to cause or tend to cause water pollution, Respondents Highlands and
Murphy have violated Section
12(a) ofthe Act, 415 JLCS 5/12(a) (2000), and 35
III. Adm.
Code
302.203.
ANSWER:
Murphy denies each and every allegation
in paragraph 29.
30.
By causing or allowing the discharge oflivestock waste to the unnamed tributary
ofFrench Creek so as to cause total ammonia levels to
exceed
15 mg/L and unionized ammonia
nitrogen levels to
exceed the acute
standard of0.33
mg/L, Respondents Highlands and Murphy
have violated Section
12(a) ofthe Act, 415 ILCS
5/l2(a)(2000), and 35 III. Adm. Code
302.212(a) and (b).
ANSWER:
Murphy denies each and
every allegation in paragraph 30.
31.
By causing or allowing the deposit oflivestock waste upon the land in suchplace
and manner so as to
create a water pollution hazard, Respondents Highlands and Murphy have
violated Section 12(d) ofthe Act, 415 ILCS 5/12(d) (2000), and 35 III. Adm.
Code 501.405(a).
ANSWER:
Murphy denies each and every allegation in paragraph 31.
32.
By causing, threatening or allowing the discharge ofa contaminant into the waters
ofthe State without an NPDES permit, Respondent Highlands and Murphy have violated Section
12(f) of the Act, 415
ILCS 5/12(f) (2000).
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ANSWER:
Murphy denies each and every allegation in paragraph 32.
WHEREFORE, Murphy respectfully requests that the Board enter judgment in Murphy’s
favor and against Complainant, that it enter an order dismissing Count II of Complainant’s
Second Amended Complaint with prejudice,
and that it grantsuch other and further relief as the
Board deemsjust and proper.
COUNT
III
WATER POLLUTION VIOLATIONS
1.
This Count is brought against Respondent The Highlands LLC on behalfofthe
People ofthe
State of Illinois,
ex rel.
Lisa Madigan, the Attorney General ofthe State ofIllinois,
on her own motion pursuant to Sections 42(d) and (e) of the Illinois Environmental
Protection
Act (“Act”), 415 ILCS 5/42(d),
(e) (2002).
ANSWER:
Murphy admits that Count III
is brought by the Attorney General ofthe
State ofIllinois on behalfofthe People ofthe State ofIllinois pursuant to Sections 42(d) and (e)
ofthe Act.
Further answering, Murphy lacks knowledge or information sufficient to form a
belief as to
the truth ofthe remaining allegations in paragraph
1
and therefore denies each and
every such allegation.
2-7.
Complainant realleges and incorporates by reference herein paragraphs 4 through
8 and paragraph
10 of Count I as paragraphs 2 through 7 of this Count Ill.
ANSWER:
Murphy restates and incorporates by this reference as though fully set
forth herein its answers to paragraphs 4 through
8 and paragraph
10 ofCount I as its answers to
paragraphs 2 through 7 ofCount III.
8-16.
Complainant realleges and incorporates by reference herein paragraphs 8 through
15 and paragraph
18 ofCount II as paragraphs 8 through 16 ofthis Count Ill.
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ANSWER:
Murphy restates and incorporates by this reference as though fully set
forth herein its answers to paragraphs
8 through
15
and paragraph 18 of Count II as its
answers
to paragraphs 8 through
16 of Count III.
17.
Section 560.207 of the Subtitle E: Agriculture Related Pollution Regulations,
35
Ill.
Adm. Code
560.207, provides, in pertinent part, as follows:
Rainfall
Judgment should be used in planning
waste applications in conjunction with
weather patterns.
ANSWER:
Murphy admits that paragraph
17 accurately sets
forth the quoted language
of
35
Ill. Admin.
Code Section 560.207.
18.
OnNovember 18,
2003, an Illinois EPA inspector observed livestock waste
application equipment in Respondent Highlands’
irrigation field immediately west of
Respondent Highlands’
swine waste lagoons. At the time ofthe observation, a traveling gun
irrigation unit was set up in the agriculture field immediately west ofthe swine waste lagoons.
Field conditions were wet and muddy. A 6-inch diameter aluminum pipe (supply line) extended
westfrom the lagoons for a distance ofseveral hundred feet. The pipe then turned south and
extended to the irrigation reel and gun. The traveling gun was positioned at the reel and had
traveled from east to
west. It was not operating at the time of the Illinois
EPA field visit.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph
18 and therefore denies each and every such allegation.
19.
Land application (irrigation) ofswine wastewater had occurred from the
Highlands
swine waste lagoons to Respondent Highlands’
irrigation field on November
17,
2003.
The irrigation of wastewater that occurred on November
17, 2003
occurred at a time when
the weather forecast included a prediction ofrain.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 19 and therefore denies each and every such allegation.
20.
At the time ofthe November
18, 2003 field visit, a significant leak was observed
along the 6-inch diameter aluminum pipe. The leak resulted in ponding of swine wastewater on
the surface of the field north ofthe aluminum irrigation pipe. The accumulation of wastewater
created a barren area in the field. A leak was
also observed at the 90 degree elbow at the west
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end ofthe aluminum irrigation pipe. At the point of the leak at the 90 degree elbow, a significant
hole was eroded in the field beneath the elbow.
ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth of the allegations in paragraph 20 and therefore denies each and every such allegation.
21.
On October 30, 2003, the Illinois EPA conducted a site visit at the Highlands’
facility. At the time ofthe October 30, 2003 site visit, a leak in the wastewater irrigation system
was observed
by an Illinois EPA inspector during land application of swine manure. At the time
ofthe October 30, 2003
inspection, the inspector observed ponding ofwastewater in the
application field at the location of the leak near the hose reel.
ANSWER:
Murphy lacks knowledge or information sufficient to
form a belief as to
the truth ofthe allegations in paragraph 21
and therefore denies each and every such allegation.
22.
At the time ofthe November
18, 2003 site visit, the Illinois EPA inspector
observed a reddish colored discharge with foam coming from an 8-inch diameter PVC pipe at a
concrete drop box structure located about 3/8 of a mile northeast of the swine farm. Depth of
flow in the PVC pipe was about 2
inches. The discharge from the PVC pipe drains east beneath a
road and enters an unnamed tributary to French Creek. The PVC pipe discharges from a field tile
that, per Respondent Highlands, is
connected to a field tile that runs on the south side of
Township Road
1100 N immediately
in front ofthe swine facility. This field tile is
located in
proximity to where wastewater was ponded at the time ofthe November
18, 2003 site visit due to
the leak in the irrigation equipment.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 22 and therefore denies each and every such allegation.
23.
At the time ofthe November 18, 2003
site visit, the Illinois
EPA inspector took
samples ofthe wastewater ponded on the irrigation field at the location ofthe leak in the 6-inch
wastewater supply line, and he also took samples of the discharge from the 8-inch PVC pipe at
the concrete drop box structure located 3/8 of a mile northeast ofthe swine farm. Sample results
from the ponded wastewater at the location ofthe leak in the 6-inch supply line indicated the
following parameter levels: 31
mg/L ammonia,
60 mg/L BOD, and 592 mg/L total
suspended
solids.
Sample results
from the discharge at the concrete drop box indicated the following
parameter levels;
1.5 mg/L ammonia,
11
mg/L BOD,
19 mg/L total suspended solids and 3000
fecal coliform/100 ml.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief asto
the truth ofthe allegations in paragraph 23 and therefore denies each and every such allegation.
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24.
The pooling ofwastewater or the excessive land application ofwastewater results
in accumulations that cannot be adequately absorbed by soils. As a result, the wastewater
penetrates to field tiles and may exist in the field tiles at contaminant levels high enough to
cause
or tend to cause water pollution at points ofdischarge.
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 24 and therefore denies each and every such allegation.
25.
By causing or allowing the ponding and accumulation oflivestock waste upon the
land so as to cause or tendto cause water pollution, Respondents
sic
Highlands has violated
Section 12(a) ofthe Act, 415 ILCS 5/12(a) (2002).
ANSWER:
Murphy lacks knowledge or information sufficient to form a beliefas to
the truth ofthe allegations in paragraph 25 and therefore denies each and every such allegation.
26.
By causing or allowing
the ponding and accumulation oflivestock waste in its
irrigation field, Respondent Highlands has violated 35 III. Adm. Code 501.405(a).
ANSWER:
Murphy lacks knowledge or information sufficient to form a belief as to
the truth ofthe allegations in paragraph 28 and therefore denies each and every such allegation.
FIRST
AFFIRMATIVE DEFENSE
The Complaint must be dismissed because Complainant’s claims against Murphy are
barred by the doctrine of laches.
SECOND AFFIRMATIVE DEFENSE
The Complaint must be dismissed to the extent that Complainant’s claims against
Murphy are barred by applicable statutes oflimitation or other applicable limitations periods.
THIRD AFFIRMATIVE DEFENSE
The Complaint must be
dismissed because the Act,
as applied to alleged odor violations,
is unconstitutionally vague in that it does not provide adequate notice ofthe conduct required to
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comply with the Act and that certain factors affecting the propagation ofodors are variable and
cannot reasonably be controlled.
WHEREFORE, Murphy respectfully requests that the Board enterjudgment in Murphy’s
favor and against Complainant, that it enter an order dismissing Complainant’s Second Amended
Complaint with prejudice, and that it grant such other and further relief as the Board deemsjust
and proper.
Dated: June 7, 2005
Respectfully submitted,
MURPHY FARMS, INC.
By:
7
One of its a
oneys
Charles M. Gering
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606
Phone:
312-372-2000
Fax: 312-984-7700
CH199 4476760-2.047331.0013
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