Lisa Madigan
tVVFORNEY GENERAL
The Honorable
Dorothy Gunn
Illinois Pollution
Control
Board
State of Illinois Center
100 West Randolph
Chicago,
Illinois 60601
RECE
WED
CLERK’S OFFICE•
JUL
052005
STATE OF ILLINOiS
Pollution
Control Board
Re:
People v.
The Highlands,
LLC., et a!.
PCB
No.
00-1 04
Dear Clerk Gunn:
Enclosed for filing
please find
the
original
and
ten
copies of a
NOTICE OF
FILING
and
MOTION
TO
STRIKE RESPONDENT
MURPHY’S AFFIRMATIVE
DEFENSES
in
regard
to
the
above-captioned matter.
Please file the original and
return a file-stamped copy
of the document
to our office in
the enclosed
self-addressed,
stamped envelope.
Thank you for your cooperation and consideration.
Very truly yours,
“i~ne E.
McBride
Environmental Bureau
500 South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
500 South
Second Street, Springl’ield,
Illinois
62706
•
(217) 782-1090
•
YTY:
(217)
785-2771
•
Fax:
(217) 782-7046
100 West Randolph
Street, Chicago,
Illinois
60601
•
(31?) 814-3000
•
T’FY:
(312) 814-3374
•
Fax:
(31?) 814-3806
1001
East Main,
Carbondale,
Illinois
62901
•
(618)
529-6401)
•
T1Y: (6l8~529-6403
•
Fax:
(618) 529-6416
OFFICE
OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
June 30, 2005
JEM/pp
Enclosures
V.
THE HIGHLANDS,
LLC,
an
Illinois
limited
liability corporation,
and
MURPHY
FARMS, INC., (a division
of MURPHY-
BROWN, LLC, a North Carolina limited
liability corporation,
and
SMITHFIELD
FOODS, INC.,
a Virginia corporation),
Respondents.
NOTICE
OF FILING
CLERK’S OFFICE
JUL
05
2005
STATE OF ILLINOIS
Pollution Control Board
To:
Mr. Jeffrey W. Tock
Harrington, Tock
& Royse
201
W. Springfield Avenue
Suite
601
-
Champaign,
IL 61824-1 550
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
June
30, 2005
Mr.
Charles
M. Gering
McDermott, Will
&
Emery
227 West
Monroe Street
Chicago,
IL 60606-5096
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MAD IGAN
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation Division
BY:
~
~
-~
~—‘~JANEE.
McBRIDE
Assistant Attorney General
Environmental Bureau
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
PCB
NO.
00-1 04
(Enforcement)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PLEASE TAKE
NOTICE that
on
June
30, 2005,
I
mailed
for filing with the
Clerk of the
Pollution Control Board of the State of Illinois,
a MOTION TO STRIKE RESPONDENT MURPHY’S
AFFIRMATIVE
DEFENSES,
a copy of which
is
attached
hereto and
herewith served
upon you.
CERTIFICATE OF SERVICE
I
hereby certify that
I
did
on June
30, 2005, send
by First Class
Mail, with postage thereon
fully prepaid,
by depositing
in
a United
States
Post Office
Box a true
and correct copy of the
following
instruments entitled
NOTICE OF
FILING and
MOTION TO STRIKE
RESPONDENT
MURPHY’S AFFIRMATIVE
DEFENSES
To:
Mr.
Jeffrey W. Tock
Harrington, Tock & Royse
201
W.
Springfield Avenue, Ste.
601
P.O.
Box 1550
Champaign,
IL 61824-1 550
Mr.
Charles M.
Gering
McDermott, Will
&
Emery
227 West
Monroe Street
Chicago,
IL 60606-5096
and
the original and ten copies by First Class
Mail with
postage thereon fully prepaid
of the
same foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
State of Illinois
Center
Suite
11-500
100 West Randolph
Chicago,
Illinois 60601
A
copy was also sent by First Class Mail with
postage thereon fully prepaid
To:
Mr.
Brad
Halloran,
Hearing
Officer
Illinois
Pollution Control
Board
James
R. Thompson Center,
Ste.
11-500
100 West
Randolph
Chicago,
IL 60601
~-~
1—~Jane
E.
McBride
Assistant Attorney General
This filing
is submitted on
recycled paper
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
•
•
CLERK’S OFFICE
PEOPLE OF THE STATE
OF ILLINOIS
.
)
)
JUL052005
Complainant,
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
)
PCB
No.
00-104
)
(Enforcement)
THE HIGHLANDS,
LLC,
an Illinois
limited
)
liability corporation,
and
MURPHY
)
FARMS, INC.,
(a division
of MURPHY-
•
)
BROWN,
LLC, a North Carolina limited
)
liability corporation,
and SMITHFIELD
)
FOODS, INC.,
a Virginia corporation).
)
)
Respondents.
•
)
MOTION
TO STRIKE RESPONDENT MURPHY’S AFFIRMATIVE DEFENSES
NOW COMES,
Complainant,
PEOPLE OF THE
STATE OF
ILLINOIS,
ex rel.
Lisa
Madigan, Attorney General
of the State of Illinois,
and moves the Board, pursuant to
Section
101 .506 of the Board’sProcedural Rules,
35111. Adm.
Code
101 .506,
to strike Respondent
Murphy
Farms,
Inc’s (“Respondent Murphy” or “Murphy Farms,
Inc.”) Affirmative Defenses on
the following grounds and for the following
reasons:
Standard
1.
Pursuant to
Section
103.204(d) of the Board’s Procedural
Rules,
35
Ill.
Adm.
Code 103.204(d),
any facts
constituting an affirmative
defense must
be
plainly set forth before
hearing in
the answer or in a supplemental answer,
unless the affirmative defense
could
not
have been known
before
the hearing.
2.
In
an affirmative defense,
the respondent alleges
“new” facts or arguments that,
if true,
will defeat.
.
.
the government’s
claim even
if
all allegations in the complaint are true.
People
v.
Community Landfill Co.,
PCB
97-1 93, slip
op.
at
3 (August 6,
1998),
cited
in
People
v.
Wood River Refining Company,
PCB 99-120,
slip op. at 3-4
(August
8,
2002),
and
People
v.
Stein Steel Mills Services,
PCB 02-1, slip op.
at
1-2
(April
18, 2002).
•
•
3.
The Board
has
also defined
an
affirmative defense as a ‘~responseto
a plaintiff’s
claim which attacks the plaintiff’s legal
right to
bring an
action, as
opposed
to
attacking the truth
of claim.”
People v.
Peabody Coal Company,
PCB 99-134, slip op.
at
4 (June
5,
2003), citing
Farmer’s State Bank v.
Phillips Petroleum Co.,
PCB 97-100,
slip op.
at 2n. 1(Jan.
23, 1997)
(quoting
Black’s Law Dictionary).
If the pleading does
not admit the opposing party’s
claim,
but
instead attacks the sufficiency of that claim,
it
is
not an
affirmative defense.
People v.
Peabody
Coal Company,
PCB 99-134, slip
op.
at 4 (June
5,
2003),
citing
WarnerAgency v.
Doyle,
121
Ill.
App.
3d 219,
221,
459 N.E.2d 663,
635
(4th
Dist.
1984).
4.
The Code of Civil Procedure gives additional guidance on
pleading
affirmative
defenses.
Section 2-613
(d),
735 ILCS
5/2-613(d), provides
in part:
The facts constituting any affirmative defense.
.
.
and
any defense which by
other affirmative
matter seeks to
avoid
the legal effect of or defeat
the cause of action
set forth
in the complaint,
.
.
.
in whole or in
part,
and any ground
or defense,
whether
affirmative or not,
which,
if not expressly stated
in the pleading, should
be likely to take
the opposite
party by surprise,
must be plainly set forth in
the answer of reply.
735
ILCS 5/2-613(d)
(2000).
cited
in
People
v.
Wood River Refining
Company,
PCB 99-120, slip
op.
at 3-4 (August
8, 2002),
and
People
v.
Stein Steel Mills Services,
PCB 02-1, slip
op. at
1-2 (April
18,
2002).
In a ruling
on
Complainant’s motion
to strike affirmative defenses in the case
of
People
v.
Midwest Grain,
PCB
97-1 79, slip
op. at 3 (August
21,
1997),
the
Board
stated
that Section
2-613(d)
provides
guidance regarding the pleading
of defenses and,
relying
on the case
of
Handelman
v.
London
Time,
Ltd.,
124
Ill.
Ap.
3d
318,
320,
464 N.E.2d 710, 712
(1st
Dist.
1984),
stated that clearly the
purpose of the above-quoted
language
is to specify the disputed
legal
issues before trial.
The
parties are to
be
informed of the legal
theories which will
be presented
by their respective
opponents.
Id.
This is a prime function of pleading.
Id.
Further guidance
is available
in
Section
2-612 of the Code of Civil Procedure,
735
ILCS 5/2-612, which provides:
Insufficient pleadings.
(a)
If any pleading is insufficient in
substance or form the
2
court may order
a fuller or more particular statement.
If l~hepleadings
do
not
sufficiently define the issues the court may order other pleadings prepared.
(b)
No
pleading
is
bad
in substance which contains such
information as
reasonably
informs the opposite party of the nature of the claim or defense which
he or she
is called
upon to
meet.
(c)
All
defects in
pleadings, either
in form
or substance,
not objected to
in the
trial court
are waived.
5.
A valid affirmative defense gives color
to the opposing party’s claim but then
asserts
new matter which defeats an
apparent right.
Condon
v.
American
Telephone and
Telegram
Co.,
210
III.
App. 3d
701, 709,
569
N.E.2d 518, 523
(2d
Dist.
1991),
citing
The
WarnerAgency Inc.
v. Doyle,
121
III. App.
3d
219, 222,
459 N.E.2d
633, 635
(4th
Dist.
1984).
6.
A motion to
strike an affirmative defense admits well-pleaded facts
constituting
the defense, and
attacks only the legal sufficiency of the facts.
“Where the well-pleaded facts
of an affirmative defense raise the possibility that the party asserting them will prevail, the
defense should
not
be stricken.”
international Insurance
Co.
v.
Sargent and Lundy,
242
III.
App.
3d
614, 630-31, 609 N.E.2d 842,
853-54
(15t Dist.
1993),
citing
Raprager
V.
Allstate
Insurance Co.,
183
III.
App.
3d 847,
854, 539 N.E. 2d
787, 791
(2nd
Dist.
1989).
7.
Affirmative defenses that are totally conclusory
in nature
and devoid
of any
specific facts supporting the conclusion are
inappropriate and
should
be stricken.
See
International Ins.
Co.,
242
Ill. App. 3d
at 635,
cited in
Glave
v.
Harris et
al,
Village of Grayslake
v.
Winds Chat Kennel,
Inc,
PCB 02-11,
PCB 02-32 (Consolidated),
slip op.
at 2 (January 24,
2002).
An asserted
affirmative defense is not, by definition, an affirmative defense,
even
if
proven true at
hearing,
if
it is an assertion that will not impact the complainant’s
legal
right to
bring the action.
Glave
v.
Harris et a!,
Village of Grayslake
v.
Winds Chat Kennel,
Inc,
PCB 02-
11,
PCB 02-32 (Consolidated),
slip
op.
at 2
(January 24,
2002),
citing
People
v.
Crane,
PCB 01-
76
(May
17,
2000).
3
Affirmative Defenses
First Affirmative Defense
8.
Respondent Murphy’s first affirmative defense
was pled,
in its entirety,
as
follows:
The Complaint must be
dismissed because
Complainant’s
claims against
Murphy are
barred by the doctrine of laches.
9.
Respondent Murphy has
failed
to
plead any facts
in this affirmative
defense.
Pursuant to
Section
103.204, the Board’s procedural
rules,
“any facts constituting an affirmative
defense must be
plainly set forth before hearing
in the answer.
.
.
“
Respondent’s first
affirmative defense is devoid
of any facts.
Thus,
it fails
on two grounds:
(1)
it is insufficiently
pled and
thus does
not meet the standard of pleading, and
(2) it fails to
assert affirmative
matter that
avoids the legal effect of or defeats a
cause of action
set forth
in the Third
Amended
Complaint.
-
10.
Laches is
an equitable doctrine that bars relief when
a defendant has
been
misled or prejudiced
due to a plaintiff’s delay in
asserting a
right.
People
v.
Crane,
PCB
01-76,
slip
op.
at 7
(May 17,2001),
City of Rochelle
v.
Suski,
206
Ill.
App.
3d 497,
501,
564
N.E.2d
933, 936
(2d
Dist.
1990);
People
v.
State Oil Co.,
PCB 97-1 03,
slip op.
at 2 (May 18,
2000).
There are two principal elements of laches:
lack of due diligence
by the party asserting the
claim;
and
prejudice to the opposing party.
See
Van Milligan
v.
Board of Fire
& Police
Commissioners,
158
Ill. 2d
84, 610
N.E.2d 830,
833 (1994);
State
Oil,
FOB
97-1 03, slip
op.
at
2.
Although applying
laches to
public bodies
is disfavored, the Illinois
Supreme Court held
in
Hickey
v.
Illinois Central Railroad Co.,
35
III.
2d 427,
220
N.E.
2d 415
(1966), that
the doctrine
can
apply to governmental bodies
under compelling circumstances.
There are very few cases
in which there
has
been a finding
of “compelling
circumstances”.
The court in
the
Hickey
case
relied on
both
laches and
estoppel.
In the case of
People v.
Big 0,
Inc.,
PCB
97-1 30,
slip op.
at
4
1-2
(April
17,
1997),
the Board followed
the courts’ holdings that if the right to
bring a lawsuit is
not barred
by the statute of limitations,
unless conduct or special
circumstances make it
inequitable to
grant relief, then the equitable doctrine of laches
does not bar a lawsuit either,
when
it struck Respondent
Big 0’s affirmative defense
that relied
on the doctrine
of laches.
In
Big
0,
the
Board
relied
on the case
of
Beynon Building
Corp.
v.
National Guardian
Life Ins.
Co,
118
Ill.
App.
3d 754,45 N.E.2d 246,
253 (2d
Dist.
1983).
As
in the case of
People
v.
Big 0,
Inc.,
FOB 97-130, slip op. at
1-2 (April
17,
1997),
the doctrine of laches
is not applicable
to the
instant case.
In that
Respondent’s first affirmative defense is devoid
of any fact and fails
to
assert any affirmative
matter that avoids the legal effect
of or defeats
a cause
of action
set forth
in the Third Amended
Complaint, Respondent Murphy’s first affirmative defense is totally
conclusory in
nature and
thus is inappropriate and
should
be struck.
11.
Further,
in that Respondent Murphy’s first
affirmative defense
is devoid of facts,
it fails because it is insufficiently pled.
Respondent has
failed to
reasonably inform,
in
fact, not
just “reasonably” but inform
at all,
the Complainant of the specific allegation
and
nature of this
defense.
It has
completely failed
to
sufficiently define the issue.
Respondent Murphy must be
held
to the appropriate standard of pleading.
It has
failed to
plead facts as
to the alleged
lack
of due
diligence
on the part of the Complainant
and it has failed
to
plead facts that form the
basis
of any claim it might have as
to
prejudice.
Further, it has failed
to plead
facts as to
how
this case qualifies as one exhibiting
exceptional circumstances.
Respondent asserts
only a
legal conclusion, which
is inappropriate.
Respondent Murphy’s first affirmative defense should
be struck.
Second Affirmative Defense
12.
Respondent Murphy’s second affirmative defense was pled,
in
its entirety,
as
follows:
5
The Complaint must be dismissed to the extent that Complainant’s
claims
against Murphy are barred
by applicable statutes of limitation or other appIicab~e
limitations periods.
13.
Respondent Murphy’s second affirmative defense
must be struck
because
(1)
it
fails to meet the standard of pleading, and
(2) the
Board
has
held
no statute of limitations
is
applicable to
public rights,
and thus,
Respondent Murphy’s second
affirmative defense does not
constitute the assertion of an affirmative
matter that avoids the legal
effect of or defeats a
cause of action pled
in
the Third
Amended
Complaint.
14.
Respondent Murphy’s second affirmative defense is conclusory in
nature and
devoid
of any facts that constitute the defense and support the conclusion.
Further, the
defense
includes the following language which is unacceptably vague and
non-specific:
“.
.
.
by
applicable statutes of limitation or other applicable limitation
periods.”
An affirmative defense
must be specifically pled.
This non-specific, broad
reference fails to
meet the standard of
pleading.
The Respondent must identify and cite to the limitation
it is asserting
to reasonably
inform the Complainant of the nature of the defense and
sufficiently define the issue.
It is
Complainant’s contention that no
statute of limitation
or “other limitation
period” exists that
would
defeat the cause of action.
This contention is soundly supported in
the case
law.
Thus,
it is
incumbent upon
the Respondent,
and
required by
the standards
of pleading, that the
Respondent specifically identify and cite
to the limitation
it
is
asserting,
in order
to reasonably
inform the Complainant of the nature
the defense.
In that Respondent’s
second affirmative
defense
is insufficiently pled,
it should
be struck.
15.
There is no statute of limitation applicable
to the allegations
of violation
contained
in the Third
Amended Complaint.
There is no statute of
limitation contained
in the
Illinois Environmental Protection Act applicable
to the violations
alleged
in
the Third
Amended
Complaint.
Respondent has failed
to
identify
or cite to
a specific limitation,
and thus
has failed
6
to
plead
and assert applicability of a limitation.
Unless the terms of a statute of limitations
expressly
include the State,
county, municipality or other governmental
agencies,
the statute,
so far as public rights are concerned,
as distinguished from private
and local rights, is
inapplicable to
them.
Pielet Bros.
Trading,
Inc.
v.
The Pollution Control Board,
110
Ill.
App. 3d
752, 442
N.E.2d 1374
(5th
Dist.
1982);
Clare v.
Bell,
378
III.
128
(1941).
The question is
whether the
State
(or its agency or subdivision) is asserting public
rights on
behalf of all the
people of the State or private rights on behalf of a
limited group.
Id.,
In
re Estate
of Bird,
410
ILL 390, 394
(1951).
The Complainant in
the instant matter
is the
People of the State of Illinois,
and
all three counts of the Third Amended
Complaint concern
public
rights.
All three counts
assert allegations of violations of statutory
protections.
Thus,
Respondent, in
its
second
affirmative defense,
has failed to plead
affirmative
matter that avoids the legal
effect of or
defeats a
cause of action
pled
in
the Third
Amended Complaint.
Therefore,
Respondent’s
second affirmative defense should
be struck.
Third Affirmative Defense
16.
Respondent Murphy’s third affirmative defense was pled
as follows:
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
of the conduct required to comply with the Act and
that certain factors
affecting
the propagation of odors are variable
and cannot reasonably
be controlled.
17.
Illinois courts have thoroughly reviewed the question of the constitutionality of
Section
9(a)
of the Act, “as applied
to odor violations”, and
have
repeatedly held that the Act
contains sufficient standards for determining what constitutes
air pollution.
The initial
Illinois
Supreme Court decision,
directly on
point,
was issued
in
1974.
As
such, Respondent has
had
more than sufficient notice of “the conduct required to
comply with
the Act”.
Further,
each and
every one of the cases cited
below addressing odor were decided
in the context of cases
and
7
controversies that included a factual
setting
concerning questions of the source of the odor,
factors pertinent to the odors generation and
dissemination as well
as the technical
practicability
of controlling the odor.
The technical practicability of control was addressed
at
length
in the decision
of
Wells Mfg.
Co.
v.
Pollution Control Board,
73
lIl.2d
226,
233,
383
N.E.2d
148
(1978).
Thus,
it is apparent, that since the
1970s,
Respondent has been
on
notice
as to
the standards applicable
to a finding of odor air
pollution in
Illinois.
Respondent’s
third
affirmative
defense is not affirmative matter that will avoid the legal effect of or defeat Count
I
of
the Third Amended
Complaint.
•
18.
Further,
Respondent Murphy’s third
affirmative defense is devoid
of facts
pertinent to the case
at bar.
It is nothing
but a legal conclusion.
It provides no facts that would
serve to
reasonably inform the Complaint of the nature of the defense in the context of the
case.
As such,
it is insufficiently pled
and should
be struck.
19.
It is well-settled
that the laws of the General Assembly are presumed to be
constitutional and
valid and
must be shown
to be
invalid beyond
reasonable doubt before
they
will
be
so cOnstrued.
People
v.
Sprinkle,
4
Ill. App.
3d
6,
15
(3rd
Dist.
1972),
280 N.E.2d
29.
In
that case, the Court relied
on the following
established test:
The defendant further asserts that Section 702-7(3) of the Juvenile Court Act
violates the constitutional
guarantees of due process and
equal
protection
because of vagueness and
ambiguity and
that there
is
a delegation
of legislative
power without adequate standards
relating to
its application.
In
considering
these contentions we
are mindful
of the
rule consistently applied by courts of
review in our state that laws of the General Assembly are presumed
to
be
constitutional
and
valid and
must be shown
to
be
invalid
beyond a reasonable
doubt
before they, will
be so construed.
(See
Liberty Foundaries
Co.
v.
Industrial
Com.,
373
111.146 (1940),
25
N.E.2d 790;
People
Gas Light &
Coke Co.
v.
Slattery,
373
III. 31(1939),
25
N.E.2d 482;
People
v.
Board of Education,
393
III.
345 (1946),
65
N.E.2d 825;
North Shore Post
No.
21
v.
Karzen,
38
lll.2d
231
(1967), 230
N.E.2d 833.)
The proper test to
be applied when the constitutionality
of a statute is challenged
on the grounds of vagueness
and
ambiguity is set forth
in the case
of
People
v.
Board of Education,
supra,
when our Supreme Court
stated:
“The omission
in
the‘statute to specify every detail step by step,
and
8
action
by action, will not render a
law vague,
indefinite or uncertain from a
constitutional
standpoint.
In
Husser v.
Fouth,
386
Ill
188
(1944),
53
N.E.2d 949,
954, we
said: “to establish the principle that whatever the
Legislature shall do
it shall do
in every detail or
else it will go undone,
would, ~neffect, destroy the government.
The government could
not be
carried
on if nothing
could
be left to
the judgment and
discretion of the
administrative officers.
‘The true distinction is between the delegation of
power to
make the law, which involves a discretion
as
to what the
law
shall be, and
conferring
an authority
or discretion
as to its execution, to
be exercised
under and
in pursuance
of the
law.
The first cannot
be
done;
to the latter no objection
can
be made.”
To the same effect is
Department of Finance v.
Cohen,
369
Ill.
510
(1938),
17 N.E.2d 327.
Its
only when the legislative act is so indefinite and uncertain
that the courts
are
unable, by accepted rules of construction, to
determine
with any
reasonable degree of certainty what the legislature intended,
or when
it is
so incomplete and
inconsistent that
it cannot
be executed, that
constitutes
such indefiniteness
and
uncertainty that will invalidate the
law.
Mayhewv.
Nelson,
346
III.
381
(1931),
178
N.E.
921.”
4
III.
App.3d
at 16-17
“It is our duty
to construe acts
of the legislature
so as to affirm
their constitutionality
and
validity,
if
it can
be
reasonably done,
and
further,
if their construction is doubtful,
the doubt will
be decided
in favor of the validity of the law challenged.”
Harris
v.
Manor Healthcare
Corp.,
111
III.
2d 350,
363 (1986),
489
N.E.2d
1374;
Say/es v.
Thompson,
99
Ill.
2d.
122,
125
(1983),
457
N.E.2d 440.
See also
Continental Illinois National Bank &
Trust Co.
v.
Illinois State
Toll
Highway Corn.,
42 Ill.
2d
385, 389 (1969),
251
N.E.2d 253.
20.
“When
a statute employs words having
a well-known
legal significance,
courts
will,
in the absence of any expression
to the contrary,
assume that the legislature intended the
words to
have that meaning.”
111111.
2d at 364;
Department of Public Works &
Buildings v.
Wishnevsky,
51111.
2d
550, 552 (1972),
283
N.E.2d 872;
People ex rel Mayfield
v.
City of
Springfield,
16
III.
2d
609,
614-15 (1959),
158
N.E.2d
582.
21.
In
City of Monmouth
v. PCB,
57 Ill.2d
482, 485-487 (1974),
313
N.E.2d
161,
163-
164, the Illinois Supreme Court held that Section
9 of the Act is not unconstitutional because
Section
9(a), when
read
in conjunction with
Sections 3(b)
now
Section 3.02 of the Act, the
9
definition
of “air pollution”,
3(d) now
Section 3.06 of the Act, the definition of “contaminant”
and Section
33(c), contains sufficient standards for determining what constitutes
air pollution.
The Supreme Court
then went on to
hold that upon
proof that odors
existed,
it
is plain that air
pollution,
as defined
in the statute, was
shown to exist.
.
.
“
313
N.E.2d at 165.
22.
The issue has
been further reviewed
by
the
Illinois Supreme Court in
the cases
of
Incinerator,
Inc.
v.
PCB,
59
lll.2d 290,
300
(1974), 319
N.E.2d 794.
Processing
& Books v.
Pollution
Control Board,
64
lIl.2d 68 (1976),
351
N.E.2d
865, and
Wells Mfg.
Co.
v. Pollution
Control Board,
73
lll.2d 226, 233,
383
N.E.2d
148
(1978).
In
Incinerator,
the court stated: “We agree with
appellant that the EPA had the burden of
proving
all essential elements of the type of air-pollution violation charged,
and the Board
must
then
assess the sufficiency of such
proof by reference to the section
33(c) criteria,
basing
thereon
its findings and orders.
59
lll.2d at 300.
(Emphasis
added).
After the
Incinerator
decision,
the Supreme Court addressed the’ question of plaintiff’s
burden to
prove
Section
33(c) factors for an allegation of the violation
of Section 9(a)
in
the
case of
Processing
& Books
v.
Pollution
Control Board,
64
lll.2d 68
(1976),
351
N.E.2d
865 at
869.
Processing Books
was a case
before the
Illinois
Pollution
Control
Board.
In
Processing
Books,
the court held as follows:
In
Incinerator
we noted that a complainant bears the
burden
of persuasion on the essential elements of the offense
charged (59
Ill.2d
290,300, 319
N.E.2d 794.)
The offense
charged in
Incinerator
and
in
this case is one
of the two types of
air pollution defined by section 3(b): that which “unreasonably
interferes with the enjoyment
of life or property.”
(59
lll.2d 290,
295,
319
N.E.2d 794, 797;
Mystik Tape
v.
Pollution Control Board
(1975), 60
Ill.2d
330,
335, 328
N.E.2d
5.)
The problem stems
from the use
of the word
unreasonably.”
Each of the four criteria
mentioned
in
section 33(c)
bears
upon the reasonableness of the
conduct involved, and
so
it might be argued that,
in order to
established the type of section 3(b)
now
3.02
offense that is here
involved,
the complainant bears the burden of proof with respect
10
to each of those
criteria.
But this interpretation
of the word
“unreasonably”
as
used
in
section 3(b)
would
appear to
place
upon
the complainant a
burden
more stringent than
he would bear
in
a common
law nuisance
action,
and thus to frustrate the
purpose of the Act “to establish a
unified, state-wide program
supplemented by
private
remedies, to
restore,
protect and
enhance the quality of the environment,
and to
assure that
adverse effects
upon the environment
are fully considered and
borne
by those who cause them.”
(Ill. Rev.
State.
1973,
ch/
111
1/2,
par
1002(b) now
section 2(b).
It would
also
render redundant
or contradict the allocation of the burdens
of proof in
Section
3 1(c).
See
Currie,
Enforcement Under the Illinois Pollution Law,
70
Nw.U.L.Rev. 389,
460-63 (1975).
There
is little that
any person
can do which does not
in
some degree
“interfere with the enjoyment of life
or property”
of
other persons.
The very act of breathing
consumes oxygen.
In
our opinion the word “unreasonably”
as
used
in section
3(b)
now
section 3.02
was intended
to
introduce into the statute something
of the objective quality of the common
law,
and
thereby
exclude
the trifling
inconvenience,
petty annoyance or minor discomfort.
(See.
e.g.
Gardner v.
International Shoe Co.
(1944),
386
III 418,
429,
54
N.E.2d 482.)
The word is used
in
a similar sense in
the
disorderly conduct
statute (Ill.
Rev.
Stat.
1967,
ch.
38,
par.
26-
1(a)).
“As used
in
this statute it removes the possibility that a
defendant’s
conduct may be
measured
by its
effect upon those
who are
inordinately timorous or belligerent.”
(People v.
Raby
(1968),
40
Ill.2d 392,
395,
240 N.E.2d 595,
598.)
This is the
meaning that was
given to
the word “unreasonably”
in the
Incinerator
case when the court referred
to “a substantial
interference with the enjoyment of life
and
property.”
Incinerator,
Inc.
v.
Pollution
Control Board
(1974),
59
Ill.2d 290,
297,
319
N.E.2d 794,797.)
As stated above,
in
Wells Mftg,
another
Board
case, the Illinois Supreme Court held
that:
As to technical
practicability,
we believe
the legislature’s use of
the word “unreasonable” in the statute
clearly places the burden
on the Agency to come
forward with
evidence that emission
reduction
is practicable.
(Ill.
Rev.
Stat.
1971,
ch.
111
1/2
par.
103(c)
now
Section
31(c);
see Currie,
Enforcement
Under the
Illinois Pollution Law,
70
Nw.U.L.Rev. 389, 460-63
(1975).)
However, the lack of available
technology is not an absolute
defense to a claim of air pollution but rather
is one
of the factors
to
be considered
by the Board.
See
Chicago Magnesium
Casting
11
Co.
v.
Pollution
Control Board
(1974),
22
llI.App.3d
489, 493,
317
N.E.2d 689.
383 N.E.2d
at
153.
That holding was met with
a strong dissent by Justice
Clark, joined
by Justice
Goldenhers h:
Accordingly,
under the theory pursued
in this case,
complainants’
burden was to
show that the odors emitted by
Wells’ facility unreasonably interfered with
the enjoyment of life or
property.
(See
Processing
& Books,
Inc.
v.
Pollution
Control
Board
(1976), 64
lII.2d 68, 75-77,
351
N.E.2d 865.)
The majority
apparently holds that the term “unreasonably”
in
section 3(b)
of
the Act (defining
air pollution) means that the complainant must
“come forward with evidence that emission
reduction
is
practicable.”
(See 73
Ill.2d
at 237,
22 lll.Dec.
at
677,
383
N.E.2d
at 153,
accord
Currie,
Enforcement Under the Illinois
Pollution
Law,
7ONw.U.L.Rev.
389, 461) Certainly, the majority cannot
contend
that the
use of the word
“unreasonable” in
defining
the
respondent’s
burden of
proof somehow defines
the complainant’s
burden
of proof.
See
Ill.
Rev. State.
1971,
ch.
111
1/2,
par.
1031(c) (Section
31(c)).
In
my opinion, this holding
both
misconstrues the Act and
directly contradicts
the unanimous decision of this court in
Processing & Books,
Inc.
v.
Pollution
Control Board
(1976),
64
lll.2d 68, 75-77,
351
N.E.2d 865.
Section
33(c) of the Act
(Ill.Rev.Stat.
1971,
oh.
111
1/2,
par. 1033©)) requires that,
“in
making
its orders and
determinations, the
Board
shall take into
consideration all the facts and
circumstances bearing
upon the
reasonableness of the emissions, discharges or deposits
involved,” and
goes on
to list several such factors,
including “the
technical
practicability
.
.
.
of
reducing or eliminating
the
emissions, discharges
or deposits”
(lll.Rev.Stat.1971, ch.
111
1/~
par.
1033(c)(iv)).
In
Processing & Books,
the appellate court had
reversed
an order of the Board on the ground that the
complainant
had failed to meet its burden of
proof on the question
of the unreasonableness
of the odor
involved
in that case,
because the complainant had failed
to introduce evidence
on
several factors stated
in
section 33(c) of the Act, including
the
factor which is involved in
this case, the technical
practicability of
reducing
or eliminating the odor.
See 28
IlI.App.3d
115,118-19,
328 N.E.2d 79.
This court unanimously
reversed,
holding that the word
“unreasonable” in section
3(b)
of the Act does
not include the
12
technical
practicability of abatement.
Rather,
the court
unanimously ‘held
that the word
“unreasonably” was
intended only
to “exclude the trifling
inconvenience,
petty annoyance or minor
discomfort.” (64
lll.2d 68,
77 351
N.E.2d 865, 869.)
The majority’s
opinion in the instant case
silently overrules the foregoing
unanimous
holding
of this
court.
Even
if
it were to
do so
expressly,
however,
I
would
not concur,
because
I
believe that
Processing &
Books
was correctly decided
and
should
not
be
overruled.
Section 33(c)
does not purport to,
nor ought it be
construed to,
allocate
burdens of proof.
The only provision of the
Act relevant to this case
which does purport
to allocate
burdens of
proof is section 31(c), which states that a complainant must show
that the respondent has caused or threatened
to cause air
pollution, and
which,
in this case,
means that the complainants
were required
to demonstrate
that Wells’ release of contaminants
unreasonably interfered with the enjoyment of life
or property.
(See
lIl.Rev.Stat.
1971,
ch.
111
~A,par. 1003(b).)
Contrary to
what the majority apparently assumes,
the factors
listed
in
section
33(c)
as being
relevant to the
“reasonableness of the emissions,
discharges or deposits involved’
do
not (with the exception of (I)
“the character and
degree of injury to, or interference
with the
protection of the health, general welfare and
physical property
of
the people”) further define the term “air pollution” and
therefore
are not elements of. the complainant’s burden of proof.
Rather, that
these factors (as well as “all the facts and
circumstances bearing
upon the reasonableness of the emissions,
discharges or deposits”) must be
considered by the
Board
means
only that these factors are available as affirmative defenses in
actions
before the Board.
Thus,
not all
those factors which the
Board
must consider
in determining the reasonableness
of
respondent’s conduct need
be shown
to demonstrate the
unreasonableness of the harm caused
by that conduct.
As a
general rule,
in an
action
to enforce a right conferred
by statute a
complainant’s burden
normally
is only to
demonstrate the injury
and
its cause
(cf.
e.g.,
Calve/ti
v.
Seipp
(1967),
37
lll.2d 596,
598-
99,
227
N.E.2d 758;
see
generally,
W. Prosser, Torts
190,
198-99
(4th
ed. 1971))— in this case, that the odor unreasonably interfered
with the enjoyment of life or property,
and that Wells
caused the
odor.
Matters within the peculiar knowledge of the respondent,
e.g.
reasons why
it ought not
be punished for or prevented from
causing the odor, such
as the impossibility of profitably operating
its business
otherwise,
or,
as in this case,
the alleged
physical
impossibility of significantly reducing or eliminating
the odor,
normally are
not elements of a complainant’s burden of proof.
Even a
massive
and
highly intrusive amount of discovery
13
frequently would
not enable a diligent but inexpert compI~inant
to
meet its burden
of proof on this question, thereby frustrating the
purposes of the Act.
I
do not believe
that the General Assembly
intended the remedies
provided by this Act tobe so illusory; nor
do
I
believe that
the General
Assembly thought it feasible for
complainants
to meet the burden of proof established
by the
majority.
383
N.E.2d at
149.
In
the case
of
People
v.
IBP,
Inc.,
309
III.App.3d 631,
639 (3~
Dist.
1999),
723
N.E.2d
370, the Court held as follows:
The Act’s
express
language directs the
Board
to consider the section 33©)
factors in
making
its determinations.
Further,
section
33 is included in the
enforcement section
of the Act, which describes the procedures that’ the Agency
and
the Board are to follow from
investigation of an
alleged violation through
hearings
and determinations in
a
proceeding.
We
find no evidence
in
the
statute’s language
or in
the surrounding
provisions that leads
this court to
conclude that the language
is intended
to apply to
actions brought in
the circuit
court.
Where it is clear from the statute’s language
that the legislature did
not
include such
a requirement,
we will not find
such a requirement.
Additionally, our
Supreme Court’s
construction of the Act likewise addresses only Board
actions.
We
agree with the first district’s conclusions
in
Environment Protection Agency
v.
Fitz-Mar,
Inc.,
178
Ill.
App.
3d
555
(1st.
Dist.
1988),
533
N.E.2d 524, that section
33(c) applies
to
Board
hearings only.
As the court therein stated:
“Section
33(c) addresses
hearings before the Board
only and has
no
bearing
on
plaintiff’s complaint
and
motion
for injunctive relief.
*
*
*
Section
33(c)’s
specificity arises from the composition of the Board
itself;
its members
are ‘technically qualified’
individuals
only and
not
required
to
have any legal training; Citation.
The guidance provided
by
section
33(c) is intended
to
prevent arbitrary Board decisions. Citation.
No such
considerations are needed to
guide the circuit court.”
Fitz-Mar,
Inc.,
178
lll.App.3d
at 563,
533 N.E.2d at
529.
We
recognize that the
Fitz-Mar
court was addressing
a water pollution claim that
did not include
a reasonableness determination;
however, the court’s
interpretation
of the Act correctly follows
rules of statutory construction and
case
precedent.
.
.
309
lll.App.3d at
639.
23.
The Court’s decision
in
IBP,
Inc.
held that
in an action
brought in the circuit court
alleging a
section 9(a) violation,
the State is not required
to allege
facts regarding technological
practicability
and economic feasibility.
It did
not precfude courts from considering the section
14
33(c) factors when making a determination of reasonableness.
24.
The factors
Respondent
Murphy raised
in
its affirmative defense,
are factors
applicable
to the standards
identified
in
the case
law pertinent to odor air pollution in
Illinois.
In
the case at bar,
Respondent Murphy can,
and
most likely will, raise
questions and
attempt to
introduce
evidence as to “variable”
“factors affecting the propagation
of odors”
and
“reasonableness”
pertinent to its
ability to
control
odors,
because
Respondent Murphy knows
such evidence
is pertinent under the standards
set forth in
the Illinois Supreme Court’s
determination that the Act’s
provisions are constitutional.
It is obvious, from the crafting
of this
affirmative defense,
that Respondent
Murphy certainly has been
and
is on
notice
as to the
applicable standards.
Respondent Murphy’s third affirmative defense is a
ruse.
Respondent’s third
affirmative defense is insufficiently pled,
and
it is a legal
conclusion
that is contrary to
long-standing
case law.
It is not affirmative
matter that will avoid
the legal
effect of or defeat
Count
I of the Third Amended
Complaint.
It should
be struck.
WHEREFORE,
on the foregoing grounds and for the foregoing reasons,
Complainant
respectfully requests that the
Board. strike Respondent Murphy Farms,
Inc.’s Affirmative
Defenses.
Respectfully submitted,
PEOPLE OF THE STATE OF
ILLINOIS,
ex
~.
LISA MAD IGAN, Attorney General
of the
State of
Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement
Division
BY:
~
~
JANE
E. MCBRIDE
Assistant Attorney General
500
South Second Street
Springfield,
Illinois
62706
(217) 782-9031
15
