ILLINOIS POLLUTION CONTROL BOARD
May 5, 2005
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
THE HIGHLANDS, L.L.C., and MURPHY
FARMS, INC. (a division of MURPHY
BROWN, LLC, a North Carolina limited
liability corporation),
Respondents.
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PCB 00-104
(Enforcement – Water)
ORDER OF THE BOARD (by N.J. Melas):
On October 18, 2004, Murphy Farms, Inc. (Murphy Farms), filed a motion to dismiss the
three-count second amended complaint as it relates to Murphy Farms.
See
35 Ill. Adm. Code
101.500(a); 735 ILCS 2/219(a)(9). Count I alleges air and odor pollution in violation of Section
9(a) of the Environmental Protection Act (Act) and Section 501.402(c)(3) of the Board’s
regulations. 415 ILCS 5/9(a) (2002); 35 Ill. Adm. Code 402(c)(3). Count II alleges water
pollution in violation of Sections 12(a) and (f) of the Act and Sections 302.212(a) and (b),
501.405(a) of the Board’s regulations, and Section 580.105 of the Environmental Protection
Agency’s (Agency) rules. 415 ILCS 5/12(a), (f) (2002); 35 Ill. Adm. Code 302.212(a), (b),
501.405(a), 580.105. Count III alleges water pollution by causing or allowing the ponding and
accumulation of livestock waste so as to cause or tend to cause water pollution in violation of
Section 12(a) of the Act and Section 501.405(a) of the Board’s regulations. 415 ILCS 5/12(a)
(2002); 35 Ill. Adm. Code 501.405(a). The complaint concerns respondents’ swine facility
located just south of Williamsfield in Elba Township, Knox County.
Murphy Farms moves the Board to dismiss the complaint against it with prejudice for
three reasons: (1) Murphy did not own the farm that caused the alleged contamination; (2)
Murphy did not control operations at the farm; and (3) Murphy did not have sufficient control
over the operation of the farm to cause or allow pollution at the site. For the reasons set forth
below, the Board denies Murphy Farms’ motion to dismiss the second amended complaint as it
relates to Murphy Farms.
PROCEURAL BACKGROUND
On December 21, 1999, the People filed a two-count complaint against respondents.
See
415 ILCS 5/31(c)(1) (2002). The People alleged that respondents violated Sections 9(a) of the
Environmental Protection Act (Act) and Section 501.402(c)(3) of the Board’s agriculture
regulations. 415 ILCS 5/9(a) (2002); 35 Ill. Adm. Code 501.402(c)(3). The People further
alleged that respondents violated these provisions by causing or allowing the emission of
2
offensive odors and by causing or allowing those odors to interfere with the use and enjoyment
of the neighbors’ property.
The People filed an amended two-count complaint on August 20, 2002. The People
allege in the amended complaint that respondents violated Sections 9(a) and 12(a), (d), and (f) of
the Act and Section 501.405(a) and 580.105 of the Board’s agriculture regulations. 415 ILCS
5/9(a) and 12(a), (d), and (f); 35 Ill. Adm. Code 501.405(a), 580.105. The People further allege
that respondents violated these provisions by causing or allowing the emission of offensive
odors, and causing or allowing the discharge of livestock waste to a tributary of French Creek
without a National Pollutant Discharge Elimination System (NPDES) permit so as to create
water pollution and a water pollution hazard. The complaint concerns respondents’ swine
facility located just south of Williamsfield in Elba Township, Knox County. The Board accepted
the amended complaint on October 8, 2002.
On June 16, 2003, the respondent Highlands, LLC filed a motion for summary judgment
on count I of the amended complaint. The People responded on July 28, 2003. On September 4,
2003, the Board denied the motion.
On February 18, 2004, the People moved the Board for leave to file a second amended
complaint, accompanied by a second amended complaint (comp.). The second amended
complaint alleged new repeat violations resulting from an Agency inspection of the Highland
facility on November 18, 2003. The Board accepted the second amended complaint on May 6,
2004. The hearing officer granted Murphy three motions for extension of time to answer the
second amended complaint.
Murphy filed a motion to dismiss the second amended complaint against it on October
18, 2004. The People replied on December 1, 2004. Murphy replied on December 22, 2004.
The People moved the Board to allow a sur-reply, but the motion was denied by hearing officer
order on January 4, 2005. To date, Murphy has not answered the complaint.
LEGAL FRAMEWORK
Section 9(a) of the Act states that no person shall:
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
. . . or so as to violate regulations or standards adopted by the Board under this
Act. 415 ILCS 5/9(a) (2002).
Section 12 of the Act provides:
No person shall:
(a) Cause or threaten or allow the discharge of any 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
3
so as to violate regulations or standards adopted by the Pollution Control
Board under this Act.
***
(f) Cause, threaten or allow the discharge of any contaminant into the waters
of the State . . . . 415 ILCS 5/12(a), (f) (2002).
Section 501.402(c)(3) of the Board rules provides:
Adequate odor control 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).
Section 501.405(a) provides that operators of livestock waste handling facilities must
factor in the proximity to surface waters and the likelihood of reaching groundwater when
determining the practical limit of livestock waste that may be applied to soils in the field. 35 Ill.
Adm. Code 501.405(a).
Section 580.105 of the Agency’s regulations requires an owner or operator to report any
release of livestock waste greater than 25 gallons from the facility to the Agency within 24 hours
of discovering the release. 35 Ill. Adm. Code 580.105.
BACKGROUND
At the time the original complaint was filed, Murphy Farms, Inc., was a North Carolina
corporation registered to do business in the State of Illinois in good standing. Comp. at 2. Since
then, Murphy Farms has been acquired by Smithfield Foods, Inc. of Smithfield Virginia.
Murphy Farms is now a division if Murphy-Brown, LLC, the hog production group for and a
division of Smithfield Foods, Inc. Murphy-Brown is located at 2822 Highway 24 West,
Warsaw, North Carolina. Comp. at 2.
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. Murphy agreed to pay
Highlands a specified amount for each pig raised at Highlands’ farm. Mot. at 1. The agreement
identifies Murphy as “owner” and the Highlands is “producer.” Resp. at 2. Under the
agreement, the Highlands agreed “to house the breeding stock delivered by Owner only for the
purposes of producing weaned pigs for Owner and to own no swine.” Murphy supplied all of the
3,650 sows at the facility. Comp. at 3. The Highlands did not agree to own or possess any of the
pigs. Resp. at 2; citing Exh. 1, pg. 3. Murphy states it owned the pigs, but had no ownership
interest in the Highlands’ farm. Mot., Exh. 1, para. 4. Murphy claims the Highlands controlled
the operation of the farm, including animal waste disposal.
Id
. The weaned pig production
agreement between the parties states that in operating the farm, Highlands must “provide the
proper husbandry for maximum productivity by following the management’s procedures
specified by Owner.” Resp. Exh. 1 at 2.
4
According to Murphy, the parties terminated their relationship in December 2002. Mot.
at 2. Since that date, Highlands continues to raise pigs, but Murphy has had no involvement.
Murphy admits that it supplied feed, medication, and veterinary services. Mot. at 2.
However, Murphy states that Highlands employed no Murphy personnel.
Id
. Murphy states that
it made recommendations to Highlands regarding animal care, but Highlands ultimately
controlled all aspects of the operation of its farm.
Id
. Specifically, Murphy contends that
Highlands controlled the land application of waste process and that under the contract, Highlands
agreed to dispose of all animal waste according to federal, state and county requirements. Mot.
at 3; Exh. 1 at 3.
The parties agree that the Highlands used two waste treatment systems at its farm during
the period of time when it raised pigs for Murphy: Bion Technologies and BioSun. Mot. Exh. 1
at 3. According to the People, Murphy was involved in selecting the Bion system as the means
of handling and treating waste at the facility. Comp. at 5.
The People state that under the agreement, Murphy had sole control of the management
of all supplies and feed and procedures for the care and productivity of the hogs. The People
also contend that Murphy retained the right to change the management of these procedures from
time to time. Resp. at 3; Exh. 1, pg. 1. The People assert that in summary, Murphy farms was
required to provide the following under the agreement: feed, breeding, stock, training of
employees, transportation of pigs, medication and veterinary service, and anything that goes on
or in the animal such as syringes, needles, marking sticks, etc. Resp. at 3, Exh. 4. Further, the
People state that Highlands paid the employees, but that Murphy trained the employees in
Murphy’s management procedures. Resp. at 4; Exh. 2 and 3.
SUMMARY OF VIOLATIONS ALLEGED IN COUNTS I AND II
Odor and Air Pollution
Count I of the complaint alleges that Highlands and Murphy caused air pollution in
violation of Section 9(a) of the Act 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.” Comp. at 17. Count I further states that by failing to employ adequate
odor control methods and technology at the facility, the respondents caused air pollution in
violation of Section 501.402(c)(3) of the Board’s regulations. Comp. at 17-18.
The People state that the respondents have caused offensive hog odors on numerous
occasions, causing physical gagging, nausea, sore and/or burning nose and throat, and headache.
The People state that the Agency received approximately 110 complaints of odor coming from
the facility submitted by neighbors of the facility in 1998, and approximately 120 in 1999.
Comp. at 7.
According to the People, the Agency issued the Highlands a Noncompliance Advisory
Letter on May 29, 1998, citing violations of Section 9(a) of the Act and Section 501.402(c)(3) of
the Board’s regulations for failure to employ adequate odor control methods and technology.
5
Comp. at 9. Agency inspectors experienced strong swine waste odors several times at the
facility and several times outside of the facility, and up to one and a quarter miles away. Comp.
at 10-11.
On July 14, 1998, the Agency sent both Highlands and Murphy a Notice of Violation
letter again citing violations of 9(a) of the Act and Section 501.402(c)(3) of the Board’s
regulations. Comp. at 11. Subsequent to the notice of violations letter, the Agency again
inspected the site on December 22, 1998, and took dissolved oxygen measurements and
temperature readings from each of the four lagoons. Comp. at 13. The People state that the
sample results showed that the first three lagoons of the system were in an anaerobic state.
Id
.
At that inspection, the Agency also tested for biochemical oxygen demand and ammonia and
noted very strong swine waste odors at all of the lagoons.
Id
. at 14.
The People state the strong waste odor existed during a July 30, 1999 investigation.
Comp. at 15. The People state that the Agency continued to receive complaints from neighbors
regarding offensive odors from the facility as of the filing date of the amended complaint.
Comp. at 17.
Water Pollution
Count II alleges that on June 18, 2002, the Highlands land applied hog waste that entered
an unnamed tributary of French Creek in the vicinity of the Highlands’ farm. The People state
the discharge into the creek alone caused a violation of Section 12(a) of the Act and Section
302.203 of the Board’s regulations. Because the discharge caused total ammonia levels to
exceed 15 mg/L and unionized ammonia levels to exceed the acute standard of 0.33 mg/L, the
People contend that respondents violated Sections 302.212(a) and (b) of the Board’s regulations.
Comp. at 24. The People assert that by depositing livestock waste on the land so as to create a
water pollution hazard, the respondents violated Section 12(d) of the Act and Section 501.405(a)
of the Board’s regulations. Finally, the People allege that because the respondents did not have
an NPDES permit, the respondents discharged in violation of Section (f) of the Act. Comp. at
25.
The People state that the waste management system used at the facility consists of four
lagoons operated in a series. Wastewater in the third and fourth lagoons was land applied via a
traveling gun irrigation unit. The People state that solid swine waste sludge that accumulated in
the second lagoon was land applied. Comp. at 19.
The People state that the Highlands and Murphy reported the release of livestock waste to
the Illinois Emergency Management Agency on June 19, 2002. Comp. at 21. The People state
that upon inspection, the Agency inspector observed an eroded wet channel in the soybean field
that extended south in the cornfield where inspectors observed that surface runoff had recently
flowed. Comp. at 23. The People state that the Illinois Department of Natural Resources
conducted a fish kill investigation and estimated that approximately 6, 600 fish were killed by
the release.
Id
. The People also state that samples taken at the June 19, 2002 inspection
demonstrated an exceedence of the acute standard for unionized ammonia.
Id.
at 24.
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MOTION TO DISMISS
Standard of Review
Murphy states that in considering a motion to dismiss, the Board may consider pleadings
as well as affirmative matter not contained in the pleadings, including affidavits. Mot. at 4;
citing Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002 (1995).
The People state that in deciding the merits of a motion to dismiss, if the Board cannot
determine disputed factual issues solely upon affidavits and counter-affidavits, the parties must
go to hearing. Resp. at 13-14; citing Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App.
3d 699, 703-704 (1st Dist. 1986).
For purposes of ruling on a motion to dismiss, all well-pled facts contained in the
pleading must be taken as true and all inferences from them must be drawn in favor of the non-
movant. People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001). A complaint
should not be dismissed for failure to state a claim unless it clearly appears that no set of facts
could be proven under the pleadings that would entitle the complainant to relief. Shelton v.
Crown, PCB 96-53 (May 2, 1996)
Section 101.504 of the Board's procedural rules regarding the content of motions and
responses states:
All motions and responses must clearly state the grounds upon which the motion
is made and must contain a concise statement of the position or relief sought.
Facts asserted that are not of record in the proceeding must be supported by oath,
affidavit, or certification in accordance with Section 1-109 of the Code of Civil
Procedure [734 ILCS 5/1-109]. A brief or memorandum in support of the motion
or response may be included.
Both parties submitted affidavits in support of new facts asserted.
Murphy Farms’ Arguments
Murphy Farms’ over-arching argument is that it did not cause or allow the alleged
violations because it neither owned nor controlled operations at the Highlands’ Farm. Murphy
states that counts I and II of the complaint relate to both Highlands and Murphy and that count
III applies to Highlands alone. Mot. at 3. Accordingly, Murphy moves the Board to dismiss
counts I and II of the complaint with prejudice as they relate to Murphy. Mot. at 3-4.
Air and Odor Pollution
Murphy Farms contends that to prevail on a claim under Section 9(a) of the Act, the
complainant must show that the alleged polluter was either capable of controlling the pollution or
was in control of the premises on which the pollution occurred. Mot. at 6; citing Philips
Petroleum Co. v. PCB, 72 Ill. App. 3d 217, 220-21, 390 N.E.2d 620, 623 (2nd Dist. 1979).
7
Murphy Farms argues that, likewise, in nuisance claims the complainant must show that the
respondent’s activity interfered with the use and enjoyment of the complainant’s property. Mot.
at 6; citing
In re
: Chicago Flood Litigation, 176 Ill. 2d 179, 204, 680 N.E.2d 265, 277 (1997).
Murphy Farms states that Illinois courts have held that the mere introduction of livestock into an
area does not establish the requisite conduct to support a nuisance claim. Mot. at 7; citing
Village of Goodfield v. Jamison, 188 Ill. App. 3d 851, 544 N.E.2d 1229 (4th Dist. 1989).
Murphy states it does not own any part of the Highlands’ farm and did not control any
aspect of the operation of the farm. Mot. at 7. According to Murphy, Highlands operated the
farm with its own management personnel and employees, decided where to locate the farm, and
owned and maintained the land, buildings, and waste treatment systems. Mot. at 7-8. For these
reasons, Murphy contends it cannot be found liable for causing air pollution in violation of
Section 9(a) of the Act or for any failure to control odor under Section 501.402(c)(3).
Water Pollution
Murphy states the allegations in count II of the complaint surround an incident that
occurred on June 18, 2002. Murphy contends it was not involved with the land application of
waste from the Highlands’ Farm and, accordingly, the Board should dismiss count II against it.
To establish a water pollution violation, Murphy claims the complainant must show that
the respondent could control the source of the pollution. Mot. at 9; citing Perkinson v. PCB, 187
Ill. App. 3d 689, 694-95, 543 N.E.2d 901, 904 (3rd Dist. 1989); People v. A.J. Davinroy
Contractors, 249 Ill. App. 3d 788, 793, 618 N.E.2d 1282, 1286 (5th Dist. 1993). Murphy asserts
that here the People cannot show Murphy had the requisite control. As stated above, Murphy
claims it did not own the Highlands’ Farm, did not operate the farm, and did not control the
handling or land application of waste material
The People’s Arguments
The People oppose Murphy’s motion to dismiss because, according to the People, under
the terms of the agreement, the facility would not be a swine production facility, and the waste
would not be at the site, but for Murphy. Resp. at 11. According to the People, caselaw requires
that Murphy need only have control over the source of pollution to establish potential liability
under the Act and Board regulations. Resp. at 14; citing Perkinson v. PCB, 187 Ill. App. 3d
689, 693 (3rd Dist. 1989); Sierra Club v. Tyson Foods, 299 F. Supp. 2d 693 (W.D. Ky. 2003).
The People state that “Murphy had sufficient ownership and control in The Highlands facility
and sufficient participation in the operation, siting, design, and establishment of both the facility
and the waste management system” to cause or allow both air pollution and water pollution
under the allegations set forth in counts I and II of the complaint. Resp. at 23-24.
Air and Odor Pollution
The People argues that Murphy’s attempt to apply nuisance principles to an allegation of
Section 9(a) is improper and incorrect. Rather, the appropriate analysis is whether the
respondent’s conduct unreasonably interfered with the complainant’s enjoyment of life or
8
property. Resp. at 18; citing City of Monmouth v. PCB, 57 Ill. 2d 482, 313 N.E.2d 1 (1972);
Incinerator, Inc. v. PCB, 59 Ill. 2d 290, 319 N.E.2d 794 (1974); Mystic Tape v. PCB, 60 Ill. 2d
330, 328 N.E.2d 5 (1975); Wells Manufacturing Co. v. PCB, 73 Ill. 2d 226, 383 N.E.2d 148
(1978).
Nonetheless, the People dispute Murphy’s contention that the mere introduction of
livestock into an area does not establish the requisite conduct to support a nuisance claim. Resp.
at 19. For support, the People state an Illinois court recently upheld a grant of injunctive relief
prohibiting the construction and operation of a hog facility. Resp. at 20; citing Nickels v.
Burnett, 343 Ill. App. 3d 654, 798 N.E.2d 817 (2nd Dist. 2003). The People state that in Nickels,
the court found that the plaintiffs had presented adequate evidence of the potential harms to their
health and to the values of their lands should the hog facility begin to operate. In Nickels, state
the People, the court found a prospective private and public nuisance. Resp. at 20.
The People reiterate that Murphy has alleged an affirmative defense and that Murphy
must prove that the alleged defense exists with reasonable certainty, or the motion should not be
allowed. Resp. at 21; citing Consumer Electric Co. v. Cobelcomex, Inc., 149 Ill. App. 3d 699,
703, 501 N.E.2d 156 (1st Dist. 1986).
The People state that the terms and conditions of the operating agreement demonstrate
that Murphy exerts sufficient ownership and control to meet the standards of a finding of liability
under the Act. Resp. at 21. The People further contend that because Murphy owns and controls
the source of the pollution,
i.e.
the hogs, Murphy caused or allowed air pollution as alleged in the
complaint. Resp. at 22.
Water Pollution
Likewise, the People argue that because Murphy owns and controls the source of the
pollution, Murphy had sufficient ownership and control in the facility to meet the standards for a
finding of liability under the Act. Resp. at 22. The People state that Murphy and the Highlands
land applied waste via a traveling gun irrigation unit on June 18, 2002. The People claim that
Murphy had as much of an interest, if not more than Highlands, in land applying the facility’s
waste as part of the waste management system at the facility. Resp. at 22-23. The People state
that Murphy “owned and controlled the very source of the pollution” and is, therefore, liable for
the alleged violations of the Act and Board regulations. Resp. at 23.
The People state that overall, it is clear from the contract and Murphy’s actions that
Murphy had sufficient ownership and control in the Highlands facility and sufficient
participation in the operation, siting, design, and establishment of both the facility and the waste
management system to qualify as having caused or allowed air and water pollution under the
standards applicable to the allegations in counts I and II of the complaint.
The People state that the record shows that Murphy had the right and ability to make
recommendations concerning management procedures for the care and productivity of the
breeding herd or measures deemed necessary by respondent Murphy to provide for the herd.
Along those lines, the People argue that because Murphy could choose to enforce the contract or
9
end the contract, which it eventually did, Murphy exercised sufficient control over the operation
of the Highlands facility.
Murphy’s Reply
Murphy claims the State has not demonstrated that Murphy has acted in any way that
caused the pollution at issue. Reply at 3. Murphy asserts that Murphy’s alleged “theoretical
right” to control Highlands’ operations is insufficient, as a matter of law, to establish Murphy’s
liability for the pollution.
Id
. Rather, asserts Murphy, the People must identify specific conduct
that caused the alleged pollution.
Id
.; citing Philips Petroleum Co. v PCB, 72 Ill. App. 3d 217,
220-21, 390 N.E.2d 620, 623 (2nd Dist. 1979). Murphy contends the State has offered no factual
basis establishing the Murphy controlled the acts that resulted in the alleged pollution.
Illustrating the point, Murphy disputes the various examples that the People provide are
evidence that Murphy had control or the ability to control the source of the alleged pollution.
First, Murphy replies that even if it provided management procedures, the People have not
identified how any management procedures have caused or allowed pollution at the Highlands
facility. Reply at 4. Second, Murphy states that the training to which the People refer is
“farrowing training” that is related to the birth of young pigs, not to waste treatment or
management. Third, Murphy claims that the financial management agreements between Murphy
and Highlands do not necessarily indicate that Murphy controlled the operation of the farm.
Id
.
Fourth, Murphy states that most of the alleged communications with regulators concerned
the siting of a facility in Peoria County, not the Highlands facility in Knox County. Reply at 5.
Murphy further contends that the inquiries do not indicate, as the People argue, that Murphy
controlled or had the ability to control, the siting of the Highlands farm.
Id
. Finally, in response
to the People’s argument that Murphy contributed to the selection of the waste treatment system,
Murphy states that the People fail to provide any factual support for this conclusion. Reply at 6.
Murphy also disputes that it had “sole control of the management of all procedures for
the care and productivity of the hogs . . . .” Murphy states that this conclusion by the People is
not supported by the facts and is inconsistent with the Lenhart affidavit. Reply at 6. Murphy
maintains that the Lenhart affidavit establishes that Highlands selected the waste treatment
system used at the farm and controlled the land application process, and that the State has not
contradicted these statements. Reply at 7-8.
Murphy agrees that the applicable standard of review is whether the People can
demonstrate that Murphy actually controlled the acts that caused the pollution or at least
controlled the premesis where the pollution occurred. Reply at 10; citing Philips Petroleum Co.,
72 Ill. App. 3d at 220-21. Murphy disputes that the caselaw cited by the People supports the
People’s position. According to Murphy, McFalls is not applicable because that case addressed
findings of open dumping that resulted in pollution on the property. In contrast, here, argues
Murphy, the People have not established that Murphy acted in any way to cause pollution in
violation of Section 9(a) of the Act. Reply at 11.
10
Murphy also states that Perkinson does not apply. While in Perkinson, it was undisputed
that the defendant controlled the lagoons and land from which the pollution occurred, here the
People have not proven that Murphy controlled the operations at the Highlands’ farm. Reply at
11. Murphy continues that Tyson Foods is not supportive either because it did not involve
violations of the Act. Reply at 11-12.
Air and Odor Pollution
In response to the People’s argument about the proper standard for a nuisance claim
under the Act, Murphy maintains that its application of common law nuisance principles to the
resolution of a Section 9(a) claim is accurate. Reply at 12. Murphy concludes that in count I of
the complaint the People merely speculate and have provided no legal basis for the claims.
Accordingly, Murphy states the count I claims should be dismissed with prejudice.
Water Pollution
Regarding the count II allegations, Murphy states the People have presented no evidence
that Murphy exercised any control over the land application of that waste. Accordingly, Murphy
contends that the claims in count II of the complaint should be dismissed with prejudice. Reply
at 14.
DISCUSSION
For purposes of ruling on a motion to dismiss, all well-pled facts contained in the
pleadings must be taken as true and all inferences from them must be drawn in favor of the non-
movant. People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001). A complaint
should not be dismissed for failure to state a claim
unless it clearly appears that no set of facts
could be proven under the pleadings that would entitle complainant to relief. Shelton v. Crown,
PCB 96-53 (May 2, 1996).
The Act clearly states it is a violation of the Act to:
cause or threaten or allow the discharge of any contaminants . . . so as to cause or
tend to cause water pollution in Illinois, either alone or in combination with
matter from other sources . . . . 415 ILCS 5/12(a) (2002).
Murphy does not dispute the allegations of odor or discharges into the unnamed tributary
of French Creek. Rather, Murphy argues the complaint must be dismissed against it because
Murphy did not have sufficient control over the facility to be liable for the alleged violations.
Therefore, in deciding whether to grant respondent Murphy’s motion to dismiss, the Board must
decide whether Murphy had sufficient control over the source of the pollution or the premises
where the pollution occurred. People v. A.J. Davinroy Contractors, 249 Ill. App. 3d 788, 618
N.E.2d 1282 (5th Dist. 1993); citing Philips Petroleum Co. v. PCB, 72 Ill. App. 3d 217, 390
N.E.2d 620 (1979).
11
Though Murphy argues that McFalls does not apply because it concerns Section 21 of the
Act, the Board finds the discussion of the phrase “cause or allow” applicable to Murphy’s motion
to dismiss. In discussing how courts have interpreted what the phrase “cause or allow” means
when used in the Act, McFalls made an important distinction. The court in McFalls held:
Rather than establishing ownership or control of the premises as a necessary
condition to liability under the Act, the cases cited by appellees merely hold that
ownership or control of the premises or control over the source of the pollution is
a sufficient condition where an owner or operator is alleged to have passively
permitted pollution to enter the environment. People v. McFalls,
et al
.
, 313 Ill.
App. 3d 223, 728 N.E.2d 1152, 1156 (3rd Dist. 2000); citing Perkinson, 187 Ill.
App. 3d 689; Phillips Petroleum Co., 72 Ill. App. 3d 217; Freeman Coal Mining
Corp., 21 Ill. App. 3d 157; Meadowlark Farms, Inc., 17 Ill. App. 3d 851
The Board finds that even though the contract between the Highlands and Murphy states
that Highlands is “to dispose of all animal waste according to federal, state and county
regulations,” the Board cannot conclude there is no set of facts that could be proven under the
pleadings that would entitle the People to relief. Resp. Exh. 1. Taking all well-pled facts as true
and construing them in favor of the People, the Board denies Murphy’s motion to dismiss.
Murphy had the obligation under its agreement with the Highlands to “provide management
procedures for the care and productivity of the Breeding Herd which may change from time to
time.”
Id
. Further, the Highlands was required by the agreement to “provide the proper
husbandry for maximum productivity by following the management’s procedures specified by
Owner.” It is not clear from the existing record whether Murphy provided any management
procedures that gave Murphy the capacity to control the source of the pollution at the facility.
Murphy states the People have not provided evidence of specific conduct by Murphy that
caused or allowed the alleged violations. However, the applicable standard does not require
specific conduct. Rather the alleged polluter must have had: (1) the capability of control over
the pollution; or (2) control of the premises where the pollution occurred.
See
Davinroy, 249 Ill.
App. 3d at 793; citing Philips Petroleum, 72 Ill. App. 3d 217. In fact, in Perkinson, the Board
found that since the record contained no evidence that the landowner had taken any precautions
to prevent the actions of the vandals that caused the pollution, the landowner was in violation
and properly fined. IEPA v. Russel Perkinson d/b/a Porkville, PCB 84-83 (Oct. 20, 1988);
aff’d
by
Perkinson, 187 Ill. App. 3d at 695. In interpreting the word “allow,” the Board has found that
one can allow a discharge by poor practices that contribute to the problem. IEPA v. Bath, Inc.
et
al.
, PCB 71-52; Bath, Inc.
et al
. v. IEPA, PCB 71-224, (consol.) (Sept. 16, 1971).
The Board finds that Murphy has not provided the Board with facts demonstrating that
Murphy lacked control of the premises or the capacity to control the source of the pollution. The
Board expects the parties to provide evidence and testimony at hearing that more clearly define
the obligations, the ability to control, and the conduct of each party. Accordingly, the Board
denies Murphy’s motion to dismiss.
A timely filed motion to dismiss under Section 103.212(b) or 101.506 stays the 60-day
period to file an answer. 35 Ill. Adm. Code 103.204(e). Both sections require the respondent to
12
file the motion within 30 days of the date it is served with the complaint. Because it was granted
several motions for extension of time, Murphy’s motion, filed October 18, 2004, was timely
under Section 101.506 of the Board’s procedural rules. Thus, the motion to dismiss stayed the
60-day period to file an answer. See 35 Ill. Adm. Code 103.204(e). The stay is lifted as of the
date of this order and Murphy has until June 4, 2005, or 30 days from the date of this order, to
answer the complaint.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 5, 2005, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
