BEFORE THE ILLINOIS POLLUTION CONTROL
PEOPLE OF THE STATE OF ILLINOIS
)
)
RECE~VEDCLERK’S
OFFICE
Complainant,
)
PCB No. 00-104
)
(Enforcement)
)
)
THE HIGHLANDS, L.L.C., et a!.,
)
)
Respondents.
)
NOTICE OF FILING
To:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Jeffrey W. Tock
Harrington, Tock & Royse
Huntington Towers, Suite 601
201 West Springfield Avenue
P.O. Box 1550
Champaign, Illinois 61824-1550
Jane E. McBride
Assistant AttorneyGeneral
Environmental Law Bureau
Office ofthe Illinois Attorney General
500 South Second Street
Springfield, Illinois
62706
PLEASE TAKE NOTICE that on October 18, 2004, we filed with the Illinois Pollution
Control Board the attached Respondent Murphy Farms, Inc.’s Motion To Dismiss Second
Amended Complaint, Respondent Murphy Farms, Inc.’s Memorandum of Law in Support of its
Motion to Dismiss Second Amended Complaint, and Affidavit of Douglas C. Lenhart, copies of
which are hereby served upon you.
Respectfully submitted,
MURPHY FARMS, INC.
Dated: October 18, 2004
Charles M. Gering
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
(312)372-2000
By:
~
~
One of its attorneys
(
v.
BOARD OCT 18 2004
STATE OF ~LLtNOIs
PollutIon Contro’ Board
(THIS FILING IS MADE ON RECYCLED PAPER)
CERTIFICATE OF SERVICE
I, the undersigned attorney, certify that on October 18, 2004, I served the attached
Respondent Murphy Farms, Inc.’s Motion To Dismiss Second Amended Complaint, Respondent
Murphy Farms, Inc.’s Memorandum of Law in Support ofits Motion to Dismiss Second
Amended Complaint, and Affidavit ofDouglas C. Lenhart, 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 4369423-1.047331.0013
(THIS FILING IS MADE ON RECYCLED PAPER)
RECEIVEDCLERKS
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
OCT 18 2904
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
No. PCB No. 00-104
(Enforcement)
THE HIGHLANDS, LLC, an Illinois
limited liability corporation, and MURPHY
FARMS, INC., (a division of MURPHY-
BROWN, LLC, a Delaware limited
liability corporation, and SMITHFIELD
FOODS, INC., a Virginia corporation),
Respondents.
RESPONDENT MURPHY FARMS, INC.’S
MOTION
TO DISMISS SECOND AMENDED COMPLAINT
Respondent Murphy Farms, Inc. (“Murphy”) hereby moves the Board to dismiss Counts I
and II of Complainant’s Second Amended Complaint (the “Complaint”), to the extent that those
counts relate to Murphy, pursuant to 35 Ill. Adm. Code Section 100.500(a) and 735 ILCS
2/619(a)(9). In support ofits motion, Murphy states as follows:
1.
The Complaint alleges that Respondents Highlands, LLC (“Highlands”) and
Murphy caused air pollution and water pollution in violation ofstate law.
2.
Count I ofthe Complaint alleges that Highlands and Murphy caused air pollution
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,” and by
“failing to practice adequate odor control methods and technology.” Complaint, Count I, paras.
8
5-86.
Count I further alleges that these actions violated Section 9(a) ofthe Illinois
Environmental Protection Act (the “Act”) and 35 Ill. Adm. Code Section 501 .402(c)(3).
3.
Count II alleges that Highlands and Murphy caused water pollution in violation of
state law on or about June 18, 2002 when Highlands’ land application ofhog waste resulted in
(THIS FILING IS MADE ON RECYCLED
PAPER)
surface runoffthat entered an unnamed tributary ofFrench Creek in the vicinity ofHighlands’
farm. Complaint, Count II, paras. 28-32. Count II further alleges that this land application
violated Sections 12(a), (d), and (f) ofthe Act, and 35 Iii. Adm. Code Sections 302.203,
302.212(a) and (b), 501
.405(a),
and 580.105.
4.
The claims against Murphy are fatally flawed and should be dismissed pursuant to
35 Ill. Adm. Code Section 101.500(a) and 735 ILCS
512-619(a)(9)
because (1) Murphy did not
own the farm from which the alleged contamination emanated, (2) Murphy had no ability to
control the operations at that farm, and (3) Murphy did not exercise sufficient control over the
operation ofthe farm to cause or allow pollution at the site.
5.
Murphy has filed contemporaneously herewith its Memorandum ofLaw in
Support ofits Motion to Dismiss Second Amended Complaint and the accompanying Affidavit
of Douglas C. Lenhart.
WHEREFORE, forthe foregoing reasons and for the reasons set forth in its supporting
memorandum, Respondent Murphy Farms, Inc. respectfully requests that the Board enter an
order dismissing with prejudice Counts I and II ofthe Second Amended Complaint to the extent
that those counts relate to Murphy.
Dated: October 18, 2004
MURPHY FARMS, INC.
By:
___________________
One ofIts Attorney~~
Charles M. Gering
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606-5096
3 12.372.2000
Facsimile: 312.984.7700
CH199 4375342-1.047331.0013
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(THIS FILING IS
MADE
ON RECYCLED PAPER)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT 182004
PEOPLE OF THE STATE OF ILLINOIS,
STATE OF ILLINOIS
P~II~tionControl Board
Complainant,
v.
No. PCBNo. 00-104
(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, NC., a Virginia corporation),
Respondents.
RESPONDENT
MURPHY FARMS, INC.’S
MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION TO DISMISS SECOND AMENDED COMPLAINT
I.
INTRODUCTION
In their Second Amended Complaint (the “Complaint”), the People ofthe State of Illinois
(the “State”) allege that Respondent Murphy Farms, Inc. (“Murphy”) caused air and water
pollution in violation ofregulations adopted by the Illinois Pollution Control Board. The State’s
claims against Murphy are fatally flawed and should be dismissed with prejudice pursuant to 35
Ill. Adm. Code Section 101.500(a) and
735
ILCS
5/2-619(a)(9)
because (1) Murphy did not own
the farm from which the alleged contamination emanated, (2) Murphyhad no ability to control
the operations at that farm, and (3) Murphy did not exercise sufficient control over the operation
ofthe farm to cause or allow pollution at the site.
II.
BACKGROUND
In 1996, Murphy and Highlands entered into an agreement under which Highlands agreed
to raise pigs at its farm near Williamsfield, in rural Knox County, and Murphy agreed to pay
Highlands a specified amount for each pig raised at Highlands’ farm. Affidavit ofDoug Lenhart,
(THIS FILING IS MADE ON RECYCLED PAPER)
Exhibit 1 hereto, para. 4. Murphy owned the pigs, but had no ownership interest in Highlands’
farm.
Id.,
para.
5.
The farm was operated entirely by Highlands, which determined where the
farm would be sited, owned and maintained the land, buildings, and other structures on the farm,
employed workers to run the farm, and had unfettered control ofthe operation ofthe farm.
Id.,
paras.
5-7.
Highlands further agreed to dispose of all animal waste according to federal, state
and county regulations.
Id.,
para. 8.
Highlands raised pigs for Murphy pursuant to their agreement from December 1997 until
December 2002, when the parties decided to terminate their relationship.
Id.,
para. 3. Highlands
continues to raise pigs on its farm, although Murphy has had no involvement with the farm since
December 2002.
Id.
During the period oftheirrelationship, Murphy supplied feed, medication, and veterinary
services for the pigs that Highlands raised on its farm.
Id.,
para.
5.
However, no Murphy
personnel were employed at Highlands’ farm.
Id.,
para. 6. Highlands employed management
personnel and workers to operate the farm, and Highlands’ management determined how the
farm would be operated.
Id.,
paras. 6-7.
Based on its experience at other farms, Murphy made recommendations concerning
husbandry and developmental issues with regard to animal care, but Highlands determined
whether it would follow Murphy’s recommendations.
Id.,
para. 7. Indeed, Highlands sometimes
deviated from Murphy’s recommendations.
Id.
Highlands controlled all aspects of the operation
ofits farm, and Murphy had no ability to cause Highlands to make, or to refrain from making,
any particular decision with respect to any issue concerning Highlands’ farm.
Id.
Similarly, to
the extent that Highlands’ waste management program involved land application of waste,
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Highlands controlled the land application process, and Murphy was not involved in any way with
land application ofwaste material from Highlands’ farm.
Id.,
para. 8.
Counts I and II ofthe Complaint are directed to Highlands and Murphy. Count III is
directed only to Highlands.
Count I alleges that Highlands and Murphy caused air pollution in violation ofstate law
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” (Complaint,
Count I, para. 85), and by “failing to practice adequate odor control methods and technology”
(Complaint, Count I, para. 86). Count I alleges that these actions violated Section 9(a) ofthe
Illinois Environmental Protection Act (the “Act”) and 35 Ill. Adm. Code Section 501 .402(c)(3).
Count II alleges that Highlands and Murphy caused water pollution in violation ofstate
law on or about June 18, 2002 when Highlands’ land application ofhog waste resulted in surface
runoffthat entered an unnamed tributary ofFrench Creek in the vicinity ofHighlands’ farm.
Complaint, Count II, paras. 28-32. The State alleges that this land application violated Sections
12(a), (d), and (f) ofthe Act, and 35 Iii. Adm. Code Sections 302.203, 302.212(a) and (b),
501.405(a), and 580.105.
III.
ARGUMENT
The Complaint makes only a few vague and conclusory allegations concerning conduct
on Murphy’s part which allegedly supports the State’s claims against Murphy. The Complaint
provides no specific bases for those allegations; instead, it simply sets forth conclusions
concerning Murphy’s alleged conduct, and purports to rely on those conclusions in support of the
claims against Murphy in Counts I and II. When the details of Murphy’s interaction with
Highlands and its farm are examined, it is clear that Counts I and II are insupportable as they
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relate to Murphy, and that they should be dismissed with prejudice pursuant to 35 Ill. Adm. Code
Section 101.500(a) and Section 2-619(a)(9) ofthe Code ofCivil Procedure.
A.
Legal Standard for Dismissal
Section 101.500(a) ofTitle 35 of the Illinois Administrative Code states that “the Board
may entertain any motion the parties wish to file that is permissible under the Act or other
applicable law, these rules, or the Illinois Code of Civil Procedure.” 35 Iii. Adm. Code
101.500(a). Section 2-619(a)(9) of the Code ofCivil Procedure provides that a court may
dismiss a claim against one or more defendants when that claim is barred by affirmative matter
avoiding the legal effect ofor defeating the claim. The purpose ofa Section 2-619 motion is to
provide a means to dispose ofissues oflaw or easily proved issues offact prior to trial.
Krilich
v. Am. Nat? Bank & Trust Co.,
334 Ill. App. 3d 563, 570, 778 N.E.2d 1153, 1160 (2nd Dist.
2002) (citation omitted). “A section 2-619 motion is properly allowed..
.
when it raises
affirmative matter which negates the plaintiff’s cause ofaction completely or when it refutes
crucial conclusions of law or conclusions ofmaterial fact that are unsupported by allegations of
specific facts.”
American Healthcare Providers, Inc. v. Cook County,
265 Ill. App. 3d 919, 922,
638 N.B.2d 772, 775 (1st Dist. 1994).
In evaluating a motion to dismiss pursuant to Section 2-619, the court may consider
pleadings as well as affirmative matter not contained in the pleadings, including affidavits.
Zedella v. Gibson, 165
Ill. 2d 181, 185, 650 N.E.2d 1000, 1002 (1995). “If facts set forth in an
affidavit supporting a motion to dismiss are not contradicted by a counteraffidavit, they will be
taken as true notwithstanding contrary unsupported allegations in the complaint.”
Krilich,
334
Ill. App. 3d at 572, 778 N.E.2d at 1162 (citation omitted).
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B.
Count I Must be Dismissed Because Murphy Neither Owned Nor Controlled
Operations at Highlands’ Farm, and Could Not Have Caused Air Pollution
Count I alleges that Highlands and Murphy violated Section 9(a) ofthe Act and 35 Ill.
Adm. Code Section 501 .402(c)(3). Section 9(a) ofthe Act states that “nb person shall cause or
threaten or allow the discharge or emission ofany contaminant into the environment.
. .
so as to
cause or tend to cause air pollution..
. .“
415 ILCS 5/9(a).
The State alleges that Murphy
violated this section 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.” Complaint, Count I, para. 85. Section 501.402(c)(3) states that
“adequate odorcontrol methods and technology shall be practiced by operators of new and
existing livestock management facilities and livestock waste handling facilities so as not to cause
air pollution.” 35 Ill. Adm. Code 501 .402(c)(3). The State alleges that Murphy violated this
section “by failing to practice adequate odor control methods and technology..
.
thereby
causing air pollution.” Complaint, Count I, para. 86.
To state a claim under each ofthese sections, the State must allege specific conduct by
Murphy which supports the alleged violations. When the vague and conclusory assertions in the
Complaint concerning Murphy’s alleged conduct are examined in light ofthe facts set forth in
the Affidavit ofDoug Lenhart filed contemporaneously with Murphy’s motion to dismiss, it is
clear that the State’s Complaint falls far short of this requirement, and that Count I must be
dismissed. Indeed, virtually the only accurate allegation in the Complaint concerning Murphy’s
conduct is that it owned the pigs raised at Highlands’ farm; this is not enough to support the
State’s claims against Murphy in Count I.
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To prevail on a claim under Section 9(a) ofthe Act, Illinois law requires that the State
demonstrate that an alleged polluter either had the capability ofcontrolling the pollution or “was
at least in control of the premises on which the pollution occurred.”
Phillips Petroleum
Company v. Pollution Control Board,
72 Iii. App. 3d 217, 220-21, 390 N.E.2d 620, 623 (2nd
Dist. 1979). In
Phillzps,
the Illinois Appellate Court reversed a Board decision and dismissed a
claim under Section 9(a) of the Act. That case involved a railroad tank car that was punctured as
the result ofa derailment; the punctured tank car released anhydrous ammonia into the air
causing property damage and physical injuries to individuals exposed to the gas. The tank car
and the anhydrous ammonia contained in the car were owned by Phillips Petroleum Company
(“Phillips”), but the tank car was part ofa train operated by another entity. The court held that
despite Phillips’ ownership ofthe tank car and its dangerous contents, Phillips was not liable for
the air pollution that occurred when the train derailed because the operator ofthe railroad was in
control ofthe car until the derailment.
Id.
Similar principles apply in the context ofnuisance claims, which are analogous to the
State’s claim against Murphy under Section 9(a) ofthe Act in that nuisance claims also require a
showing of“substantial invasion ofanother’s interest in the use and enjoyment of his or her
land.”
In re Chicago Flood Litigation,
176 Ill. 2d 179, 204, 680 N.E.2d 265, 277 (1997). As
with claims under Section 9(a) ofthe Act, a nuisance claim is predicated on conduct and control.
The defendant’s wrongful conduct is an essential element: “the standard for determining if
particular
conduct
constitutes a nuisance is the
conduct’s
effect on a reasonable person.”
Id.
(citation omitted; emphasis added). “Where it is not shown that a person created or continued a
nuisance or that he owned, maintained, or controlled the premises on which it exists, such person
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has no responsibility therefor.”
Brunsfeld v. Mineola Hoteland Restaurant, Inc.,
119 Ill. App.
3d 337, 345, 456 N.E.2d 361, 367 (1st Dist. 1983) (citations omitted).
It is well-settled that the mere introduction of livestock into an area—even large numbers
ofanimals—without more, does not establish the requisite conduct to support a nuisance claim.
Instead, the plaintiff must establish that the operation or maintenance ofthe facility at which the
animals are located is deficient, and that the defendant’s deficient operation or maintenance of
the facility resulted in the creation ofthe nuisance. The court in
Village of Goodfield v. Jamison,
188 Ill. App. 3d 851, 544 N.E.2d 1229 (4th Dist. 1989), analyzed precisely that issue. In that
case, the court held that a hog transfer station, which is an intermediate facility to which farmers
bring their hogs for later transport to market by the transfer station operator, did not necessarily
constitute a nuisance. The court affirmed the denial of the plaintiffs request for injunctive relief,
reasoning that the issue ofwhether nuisance conditions existed on the premises depended on how
the waste was handled and on other operational factors.
See id.,
188 Ill. App. 3d at 860-61, 544
N.E.2d at 1234-3
5.
The court held that the mere presence ofhundreds and hundreds ofhogs per
day was insufficient to support the plaintiffs nuisance claim.
See id.
The uncontroverted facts concerning Murphy’s involvement with Highlands’ farm clearly
establish that the State’s claims against Murphy in Count I of the Complaint are insupportable.
Although Murphyowned the pigs that Highlands raised, Murphy had no ownership interest in
Highlands’ farm. Affidavit of Doug Lenhart, Exhibit 1 hereto, para.
5.
Highlands operated the
farm with its own management personnel and employees.
Id.,
para. 6. Murphy had no ability to
control any aspect ofthe operation ofthe farm, and did not control the farm’s operation in any
way.
Id.,
para. 7. Highlands determined where the farm would be sited, and owned and
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maintained the land, buildings, and waste treatment system.
Id.,
paras.
5,
7. Highlands selected
the waste treatment systems that were used at its farm.
Id.,
para. 9.
In light ofthese facts, Murphy’s conduct, which must be the focus of the Board’s analysis
ofthe sufficiency ofthe State’s Complaint, clearly does not support the claim against Murphy set
forth in Count I ofthe Complaint. Murphy did not own, had no ability to control, and did not
control the operation ofHighlands’ farm. Thus, Murphy could not have caused air pollution in
violation ofSection 9(a) ofthe Act. Similarly, Murphy could not be liable for any failure to
practice adequate odor control methods and technology under 35 Ill. Adm. Code Section
501 .402(c)(3).
For these reasons, Count I ofthe Complaint is insupportable, and must be dismissed with
prejudice.
C.
Count II Should be Dismissed Because Murphy Did Not Participate in Land
Application of Livestock Waste
Count II ofthe Complaint alleges that Highlands and Murphy caused water pollution
when surface runofffrom land application of waste from Highlands’ farm entered an unnamed
tributary ofFrench Creek in the vicinity ofHighlands’ farm. The Complaint erroneously alleges
that “Highlands
and Murphy
were land applying waste from the facility via a traveling gun
irrigation unit on June 18, 2002.” Complaint, Count II, para. 22 (emphasis added). This
erroneous assertion is the basis offive alleged violations ofstate environmental laws. In truth,
Murphy never played any role in connection with land application of waste from Highlands’
farm; Highlands was in complete control ofthat process. Consequently, Count II should be
dismissed.
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To establish a water pollution violation, the State must show that the alleged violator was
capable ofexercising control over the source ofthe pollution at issue.
See Perkinson v. Pollution
Control Board,
187 Iii. App. 3d 689, 694-95, 543 N.E.2d 901, 904 (3rd Dist. 1989) (noting that a
person would not be responsible for pollution where the person “lacked the capability to control
the source, as in
Phillips Petroleum
. . .
.“).
“The analysis applied by courts in Illinois for
determining whether an alleged polluter has violated the Act is whether the alleged polluter
exercised sufficient control over the source ofthe pollution.”
People v. A.J. Davinroy
Contractors,
249 Ill. App. 3d 788, 793, 618 N.E.2d 1282, 1286 (5th Dist. 1993) (citation
omitted).
Count II ofthe State’s Complaint does not meet these requirements. Murphy had no
ownership interest in Highlands’ farm, and did not participate in any way in the operation ofthe
farm. Exhibit 1, paras. 5-7. Murphy did not control the handling ofwaste material generated at
Highlands’ farm.
Id.,
para. 8. At no time, including but not limited to the alleged incident on
June 18, 2002 which forms the basis ofCount II ofthe Complaint, did Murphy engage in or
participate in any way in the land application ofsuch waste material.
Id.,
para. 8.
Because Murphy was neither the owner nor the operator ofHighlands’ farm, and because
it had no role in the land application ofwaste material that is the subject ofCount II, Murphy had
no responsibility to report the alleged release pursuant to 35 Ill. Adm. Code Section 508.105(a).
Similarly, Murphy’s complete lack ofcontrol over the source ofthe alleged pollution fatally
undermines the State’s allegations that Murphy violated Sections 12(a), (d), and (f) ofthe Act.
Thus, the claims set forth in Count II are insupportable and must be dismissed with prejudice.
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IV.
CONCLUSION
The vague and conclusory allegations of the State’s Complaint are insufficient to support
its claims against Murphy in Counts I and II. When those claims are examined in light of the
facts set forth in the Affidavit ofDouglas C. Lenhart, it is clear that those claims cannot stand.
For these reasons, Murphy respectfully requests that the Board dismiss Counts I and II with
prejudice to the extent that those counts relate to Murphy.
Dated: October 18, 2004
MURPHY FARMS, iNC.
By:
________________
One ofIts Attorneys
Charles M. Gering
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606-5096
312.372.2000
Facsimile: 312.984.7700
C11199 4373887.2.047331.0013
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(THIS FILING IS MADE ON RECYCLED PAPER)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
No. PCB No. 00-104
(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.
AFFIDAVIT
OF DOUGLAS
C. LENHART
Douglas C. Lenhart, under penalties as provided by law pursuant to Section 1-109 ofthe
Code of Civil Procedure, states as follows:
1.
I have firsthand knowledge of the matters stated herein, and could and would
testify competently thereto if called as a witness.
2.
I am currently a Territory Manager for Murphy-Brown, LLC. I have held that
position since 2000.
3.
During the period from 1996 through 2000, I was employed as Illinois Operations
Manager for Murphy Farms, Inc. (“Murphy”). As Illinois Operations Manager for Murphy
through 2000, and continuing thereafterin my capacity as Territory Manager for Murphy-Brown,
LLC, I was the liaison between Murphy and certain farmers in Illinois who raised pigs owned by
Murphy. These farmers included Doug and Jim Baird, who were the principals ofHighlands,
L.L.C. (“Highlands”), a company that operates a farm located near Williamsfield in rural Knox
County, Illinois. Highlands raised pigs owned by Murphy from December 1997 through
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CF1199 4374049-2.047331.0013
December 2002. By mutual agreement, Murphy and Highlands terminated theirrelationship in
December 2002, and all pigs owned by Murphy were removed from Highlands’ farm at that
time.
4.
Under the agreement between Murphy and Highlands into which the parties
entered in 1996, Highlands agreed to raise pigs owned by Murphy at Highlands’ farm, and
Murphy agreed to pay Highlands a specified amount for each pig that Highlands raised at
Highlands’ farm pursuant to that agreement.
5.
Highlands and/or its principals owned Highlands’ farm, including the land,
buildings, structures, fixtures, and equipment. Murphy owned the pigs that Highlands raised on
its farm pursuant to its agreement with Murphy, and Murphy supplied feed, medication, and
veterinary services for those pigs. However, Murphy had no ownership interest in Highlands’
farm at any time, nor in any buildings, structures, fixtures, or equipment located on Highlands’
farm.
6.
Highlands operated its farm with its own management personnel and employees.
No Murphy Farms personnel were employed at Highlands’ farm at any time.
7.
Highlands’ farm, including its waste treatment system, was operated entirely by
Highlands and its employees. Highlands’ management personnel determined where the farm
would be sited and how it would be operated. Murphy made recommendations concerning
husbandry and developmental issues with respect to animal care, but Highlands determined
whether it would follow those recommendations. Highlands sometimes deviated from Murphy’s
recommendations, and Murphyhad no ability to cause Highlands to comply with its
recommendations. Highlands controlled all aspects ofthe operation ofits farm, and Murphy had
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CH199 4374049-2.047331.0013
no ability to cause Highlands to make, or to refrain from making, any particular decision with
respect to any issue concerning Highlands’ farm.
8.
Under its agreement with Murphy, Highlands agreed to dispose of all animal
waste according to federal, state and county requirements. Murphy had no ability to control, and
did not control, the handling ofwaste material generated at Highlands’ farm. To the extent that
its waste management program involved land application of waste, Highlands completely
controlled the land application process. Murphy was not involved in any way with land
application ofwaste material from Highlands’ farm, including but not limited to those activities
on June 18, 2002, which form the basis ofCount II ofthe Complaint in this matter.
9.
Highlands used two waste treatment systems at its farm during the period oftime
when it was raising pigs fOr Murphy, a Bion Technologies, Inc. system and a BioSun system.
Highlands selected these waste treatment systems for use at its farm. Murphy did not have the
ability to, and did not, cause Highlands to use any particular waste treatment system or
technology.
Under penalties as provided by law pursuant to Section 1-109 of
the Code of Civil Procedure, the undersigned certifies that the.
statements set forth in this instrument are true and correct, except
as to matters stated to be on information and belief and as to such
matters the undersigned certifies as aforesaid that he verily
believes the same to be true.
Dated: October 14, 2004
____________________________
Dc~jlasC.Lenhart
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CH199 4374049-2.047331.0013
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT
182004
PEOPLE OF THE STATE OF ILLINOIS,
PojIutjo~
STATE OF
Controj
ILLINOIS
Board
Complainant,
v.
No. PCB No. 00-104
(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.
AFFIDAVIT
OF DOUGLAS C. LENHART
Douglas C. Lenhart, under penalties as provided by law pursuant to Section 1-109 ofthe
Code ofCivil Procedure, states as follows:
1.
I have firsthand knowledge ofthe matters stated herein, and could and would
testify competently thereto if called as a witness.
2.
I am currently a Territory Manager for Murphy-Brown, LLC. I have held that
position since 2000.
3.
During the period from 1996 through 2000, I was employed as Illinois Operations
Manager for Murphy Farms, Inc. (“Murphy”). As Illinois Operations Manager for Murphy
through 2000, and continuing thereafter in my capacity as Territory Manager for Murphy-Brown,
LLC, I was the liaison between Murphy and certain farmers in Illinois who raised pigs owned by
Murphy. These farmers included Doug and Jim Baird, who were the principals ofHighlands,
L.L.C. (“Highlands”), a company that operates a farm located near Williamsfleld in rural Knox
County, Illinois. Highlands raised pigs owned by Murphy from December 1997 through
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December 2002. By mutual agreement, Murphy and Highlands terminated theirrelationship in
December 2002, and all pigs owned by Murphy were removed from Highlands’ farm at that
time.
4.
Under the agreement between Murphy and Highlands into which the parties
entered in 1996, Highlands agreed to raise pigs owned by Murphy at Highlands’ farm, and
Murphy agreed to pay Highlands a specified amount for each pig that Highlands raised at
Highlands’ farm pursuant to that agreement.
5.
Highlands and/or its principals owned Highlands’ farm, including the land,
buildings, structures, fixtures, and equipment. Murphy owned the pigs that Highlands raised on
its farm pursuant to its agreement with Murphy, and Murphy supplied feed, medication, and
veterinary services for those pigs. However, Murphy had no ownership interest in Highlands’
farm at any time, nor in any buildings, structures, fixtures, or equipment located on Highlands’
farm.
6.
Highlands operated its farm with its own management personnel and employees.
No Murphy Farms personnel were employed at Highlands’ farm at any time.
7.
Highlands’ farm, including its waste treatment system, was operated entirely by
Highlands and its employees. Highlands’ management personnel determined where the farm
would be sited and how it would be operated. Murphy made recommendations concerning
husbandry and developmental issues with respect to animal care, but Highlands determined
whether it would follow those recommendations. Highlands sometimes deviated from Murphy’s
recommendations, and Murphyhad no ability to cause Highlands to comply with its
recommendations. Highlands controlled all aspects ofthe operation ofits farm, and Murphy had
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no ability to cause Highlands to make, or to refrain from making, any particular decision with
respect to any issue concerning Highlands’ farm.
8.
Under its agreement with Murphy, Highlands agreed to dispose ofall animal
waste according to federal, state and county requirements. Murphy had no ability to control, and
did not control, the handling of waste material generated at Highlands’ farm. To the extent that
its waste management program involved land application ofwaste, Highlands completely
controlled the land application process. Murphy was not involved in any way with land
application ofwaste material from Highlands’ farm, including but not limited to those activities
on June 18, 2002, which form the basis ofCount II of the Complaint in this matter.
9.
Highlands used two waste treatment systems at its farm during the period oftime
when it was raising pigs fOr Murphy, a Bion Technologies, Inc. system and a BioSun system.
Highlands selected these waste treatment systems for use at its farm. Murphy did not have the
ability to, and did not, cause Highlands to use any particular waste treatment system or
technology.
Under penalties as provided by law pursuant to Section 1-109 of
the Code ofCivil Procedure, the undersigned certifies that the.
statements set forth in this instrument are true -and correct, except
as to matters stated to be on information and belief and as to such
matters the undersigned certifies as aforesaid that he verily
believes the same to be true.
Dated: October 14, 2004
.
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Dd~ffiasC. Lenhàrt
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