RECE~VED
CLERK’S OFFICE
DEC 29 200k
OFFICE OF THE AITORNEY GENERAL
Pollution
STATE OF
Control
ILLINOIS
Board
STATE OF ILLINOIS
Lisa Madigan
A’TORNEY GENERAL
December 27, 2004
The Honorable Dorothy Gunn
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph
Chicago, Illinois 60601
Re:
People v. The Highlands, LLC., et a!.
PCB No.
00-104•
Dear Clerk Gunn:
Enclosed for filing please find the original and ten copies of a NOTICE OF FILING and
MOTION FOR LEAVE TO FILE A SUR-REPLY REGARDING RESPONDENT MURPHY’S
MOTION TO DISMISS 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,
Jane E. McBride
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
JEM/pp
Enclosures
500 South Second Street, SpringOeld, Illinois 62706
• (217) 782-1090 •
TTY: (217) 785-2771
•
Fax: (217) 782-7046
100 ~Vesi Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
•
TTY: (312) 814-3374
•
Fax: (312) 814-3806
1001 East Main, Carbondale. Illinois 62901
•
(618) 529-640(1
•
TTY: (618)
529-6403
•
Fax: (618) 529-6416
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.
)
PCB NO. 00-1 04
(Enforcement)
NOTICE OF FILING
To:
Mr. Jeffrey W. Tock
Harrington, Tock & Royse
201 W. Springfield Avenue
Suite 601
Champaign, IL 61824-1550
Mr. Charles M. Gering, Esq.~
McDermott, Will & Emery
227 West Monroe Street
Chicago, IL 60606-5096
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: December 27, 2004
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY: ~7
~
—~JANEE. McBRIDE
Assistant Attorney General
Environmental Bureau
BEFORE THE ILLINOIS POLLUTION
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
RECErvED
CONTROL BOARD CLERK’S OFFICE
DEC 29 2004
STATE OF ILLINOIS
Pollution
Control Board
)
)
)
)
)
)
PLEASE TAKE NOTICE that on December 27, 2004,1 mailed for filing with the Clerk of the
Pollution Control Board of the State of Illinois, MOTION FOR LEAVE TO FILE A SUR-REPLY
REGARDING RESPONDENT MURPHY’S MOTION TO DISMISS, a copy of which is attached
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that I did on December 27, 2004, 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 FOR LEAVE TO FILE A
SUR-REPLY REGARDING RESPONDENT MURPHY’S MOTION TO DISMISS
To:
Mr. Jeffrey W. Tock
Mr. Charles M. Gering, Esq.
Harrington, Tock & Royse
McDermott, Will & Emery
201 W. Springfield Avenue, Ste. 601
227 West Monroe Street
P.O. Box 1550
Chicago, IL 60606-5096
Champaign, IL 61824-1 550
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
State of Illinois Center, Ste. 11-500
100 West Randolph
Chicago, IL 60601
~
~J~neE. McBride
Assistant Attorney General
This filing is submitted on recycled paper.
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC 29 2004
STATE OF ILLIMOIS
PEOPLE OF THE STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
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 FOR LEAVE TO FILE A SUR-REPLY
REGARDING RESPONDENT MURPHY’S MOTION TO DISMISS
NOW COMES Plaintiff, PEOPLE OF THE STATE OF ILLINOIS,
ex
ref
Lisa Madigan,
Attorney General of the State of Illinois and moves for leave to file a sur-reply in response to
Respondent Murphy’s reply regarding its Motion to Dismiss, and in support thereof, Plaintiff
states as follows:
- 1;
On December27; 2004,Complainantreceived-RespondentMurphy’s reply to
Complainant’s response to Respondent Murphy’s motion to dismiss.
2.
In its reply, Respondent Murphy greatly clarified its position regarding the.
standards applicable to the issues that are the subject of its Motion to Dismiss. These issues
include the question of the basis for a finding of liability under the Illinois Environmental Control
Act, and the requisite allegation of fact necessary to meet pleading standards, particularly in
light of the applicable legal standard for a finding of liability.
3.
Respondent Murphy’s position is patently flawed. Now that Respondent’s
position has been so much better articulated, particularly specifically in the context of
Complainant’s response to the original motion, the Complainant should be given an opportunity
to respond.
4.
Complainant stands to be materially prejudiced if it is not allowed to respond to
the reply. The Respondent has grossly misstated the law. In so doing, it has greatly
mischaracterized supporting materials submitted in conjunction with Complainant’s response.
5.
The basis of liability under the Illinois Environmental Protection Act includes a
finding of sufficient ownership interest and ability to exert control. Complainant has submitted
sufficient evidence to substantiate its allegations that Respondent Murphy had the ability to
exert control. In its reply, Respondent talks about “theoretical control”. To the contrary, by the
very terms of its agreement with The Highlands, it is obvious that Respondent Murphy had an
actual ability to exert control.
6.
Respondent chooses to deceptively place focus upon the physical facility of The
Highlands, rather than more appropriately address The Highlands’ hog facility for what it is, a
sow production operation. It is the operation conducted at the facility that is the source of the
pollution. Respondent was a full participant in that operation and partial owner of the operation.
7.
It is useful for Respondent Murphy to confuse nuisance standards with statutory
criteria, as it continues to attempt to do in its reply, because nuisance standards include the
~
of”conduöt”. Case law applicable to statutory criteria focuses upon ownership, a
person who may cause or allow pollution to occur, and the ability to control. Respondent
Murphy’s participation in the Highland’s operation certainly met the criteria applicable to a
finding of liability under the Illinois Environmental Control Act.
8.
It is obvious from the foregoing, that Respondent Murphy, in its reply, has now,
for the first time, narrowed and much more specifically defined its argument. Complainant
should be allowed to respond to Respondent Murphy’s reply, now that Respondent’s position
has been fully defined.
9.
Complainant requests that it be granted two weeks in which to file a sur-reply.
WHEREFORE, Complainant respectfully requests leave to file a sur-reply regarding
Respondent Murphy’s pending Motion to Dismiss. Said sur-reply shall be due two weeks from
the date upon which this motion is granted.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex r&. LISA MADIGAN, 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
8
