CLERK’S OFF!CE
JUL
082005
BEFORE THE ILLINOIS POLLUTION CONT.RQL
bIAIE
OF
ILLIN0~S
PoDution Control Boarc~
VERNON AND
ELAINE ZOHFELD,
COMPLAINANTS
vs.
CAUSE NO. PCB 2005-193
ROBERT
DRAKE,
WABASH
VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D.
HORTON
AND
STEVE KINDER,
RESPONDENTS
NOTICE OF
FILING AND
PROOF OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing
Appearance of Thomas H. Bryan on behalf ofRespondent Bob Drake, Respondent
Drake’s Motion To Stay Proceedings and Answer and Affirmative Defense in Lieu of
Motion to Stay Proceedings, Status Report, and of this Notice of Filing, were served
upon the Clerk of the Illinois Pollution Control Board, and one copy to each ofthe
following parties of record in this cause by enclosing same in an envelope addressed
to:
Illinois Pollution Control Board
Stephen F. Hedinger, Esq.
Dorothy Guna, Clerk
HEDINGER & HOWARD
James R. Thompson Center
1225 S. Sixth St.
100 W. Randolph St., Suite 11-500
Springfield, IL 62703
Chicago, IL 60601
Thomas Safley, Esq.
Hodge Dwyer Zerman
P.O. Box
5776
Springfield IL
62705-5776
With postage fuily prepaid, and by deposition said envelope in a U.S. Post Office
Mail Box in Evansville Indiana before 5:30 p.m. on
_________
July, 2005.
FINE &
HATFIELD
P.O. BOX 779
EVANSVILLE. INDIANA47705-0779
812) 425-3592
Thomas H. Bryan
U
IN # 295 8-82
IL # 328367
A member with the law firm of:
FINE
&
HATFIELD,
A ProfessionalCorporation
520 N.W. Second Street
P.O. Box 779
Evansville, Indiana 47705-0779
Telephone: (812)
425-3592
Fax: (812) 421-4269
E-mail: thb ® fine-hatfield.com
Attorneys for Robert Drake
Respondent
This document prepared on recycled paper
2
CLERK’S OFFICE
JUL 082005
BEFORE THE ILLINOIS POLLUTION CONTROL
B 0 A R D
STATE OF ILLINOIS
PoHution Control L3oard
VERNON
AND ELAINE ZOHFELD,
COMPLAINANTS
vs.
CAUSE NO. PCB 2005-193
ROBERT DRAKE, WABASH
VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D.
HORTON AND STEVE KINDER,
RESPONDENTS
APPEARANCE
I hereby file my appearance in this proceeding, on behalf ofRobert Drake.
~
~—
Thomas H. Bryan
IN #2958-82
IL# 328367
A member with the law firm of:
FINE
&
HATFIELD,
A ProfessionalCorporation
520 N.W. Second Street
P.O. Box 779
Evansville, Indiana 47705-0779
Telephone: (812) 425-3592
Fax: (812) 421-4269
E-mail: thb @ fine-hatfield.com
Attorneys for Robert Drake
Respondent
This document printed on recycled paper
FINE &
HATFIELD
P.O. BOX 779
EVANSVILLE. INDIANA47705-0779
812 425-3592
REcv~
CLERK’$
OFFIC
JUL03 2005
BEFORE THE ILLINOIS POLLUTION
CONI~A?EIbF,LLII\JOIS
B 0 A R D
Pollution Control Board
VERNON AND ELAINE ZOHFELD,
COMPLAINANTS
vs.
CAUSE NO. PCB 2005-193
ROBERT
DRAKE,
WABASH
VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D.
HORTON AND STEVE KINDER,
RESPONDENTS
RESPONDENT DRAKE’S MOTION TO STAY PROCEEDINGS
AND
ANSWER AND AFFIRMATIVE DEFENSE IN LIEU OF MOTION TO STAY
PROCEEDINGS
MOTION TO STAY PROCEEDINGS
Comes now Respondent Robert Drake (hereafter “Drake”), by counsel,
Thomas H. Bryan of the firm of Fine & Hatfield, a professional corporation, and for
his Answer and Affirmative Defenses to the Complaint flied by Complainants,
Vernon and Elaine Zohfeld (hereafter collectively “Zohfelds”), states as follows:
1.
That Complainants have fostered a number of actions as a result of the
alleged injuries and damages claimed from the application of agricultural products.
This includes a criminal action against one or more ofthe Respondents other than
Drake. It also includes a Department of Agriculture action against one or more
Respondents other than Drake.
FINE &
HATFIELD
P.O. BOX 779
EVANSVILLE. INDIANA 47705-0779
8121 425-3592
2.
In addition, Complainants have a civil action pending in Hamilton
County against the Respondents in Hamilton County making allegations arising out of
the alleged overspray or drift asserted in this matter. As will be noted in the
Affirmative Defense pled in the Answer and Affirmative Defenses herein, plaintiffs
initially filed in Hamilton County, voluntarily dismissed and refilled in White County,
only to have the matter transferred back to Hamilton County on a motion for
Forum
Non Conveniens.
That decision was appealed to the Illinois Appellate Court, but that
Court affirmed in September 2004. The case now resides in Hamilton County on a
Third Amended Complaint and discovery is ongoing.
3.
That counsel for Drake has been informed that counsel for the
remaining Respondents intends to seek a stay of this matter because of the pending
criminal case, because ofthe potential unavailability ofwitnesses until that criminal
matter has been concluded. Counsel for the remaining Respondents is tendering to
this Board copies of the relevant documents referenced in this motion.
4.
That if such witnesses are unavailable, the Respondent Drake will be
without the means and witnesses to properly defend this matter.
5.
That ultimately, Complainants will have the opportunity to have a full
adjudication of their complaints against.respondents, when the civil case is concluded.
But until discovery is available and complete, Respondent Drake will be unable to
properly defend himself in this action. This is particularly true if the Board agrees to
stay the action against the other Respondents, without staying the complete case. It
would be patently unfair to permit this action to proceed on fewer than all named
Respondents.
2
WHEREFORE, Respondent Drake, through his counsel, Thomas H. Bryan, of
the firm of Fine & Hatfield, a professional corporation prays that the Board enter an
Order staying this matter until the criminal matter against the other named
Respondents has been concluded.
RESPONDENT DRAKE’S ANSWER
AND
AFFIRMATIVE DEFENSE IN
LIEU OF MOTION TO STAY PROCEEDINGS
Comes now Respondent Robert Drake (hereafter “Drake”), by counsel,
Thomas H. Bryan of the firm of Fine & Hatfield, a professional corporation, and for
his Answer and Affirmative Defenses to the Complaint filed by Complainants,
Vernon and Elaine Zohfeld (hereafter collectively “Zohfelds”), states as follows:
ANSWER
1.
The allegation that the “Complaint is being brought pursuant to Section
31 of the Illinois Environmental Protection Act, 415 ILCS 5/31” states a legal
conclusion to which no response is required. To the extent that Paragraph 1 makes
any further allegations of fact, Drake denies the same.
2.
Drake admits that Zohfelds have property located in Hamilton County,
but has insufficient information to admit or deny whether each of them were in
residence at any or all the times referenced in the Complaint, and therefore deny all
remaining allegations contained in Paragraph 2, and respectfully demand strict proof
thereof.
3.
To the extent that Paragraph 3 indicates that the Zohfelds were located
in Hamilton County, Drake admits such allegation; further answering, has insufficient
3
information to admit or deny any and all the remaining allegations contained in
Paragraph 3, and therefore denies this allegation and respectfully demands strict proof
thereof.
4.
Drake admits the allegations contained in Paragraph 4.
5.
Drake admits the allegations contained in Paragraph
5.
6.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 6, and therefore denies this allegation and
respectfully demands strict proofthereof.
7.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 7, and therefore denies this allegation and
respectfully demands strict proofthereof.
8.
Without admitting that the same has occurred in this matter as
described by the Complainants, or with any legal effect ofthe labeling of the
movement of agrichemical spray particles and vapors, Drake will accept
Complainants’ use of the descriptive words reference.
9.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
4
the allegations contained in Paragraph 9, and therefore denies this allegation and
respectfully demands strict proofthereof.
10.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 10, and therefore denies this allegation and
respectfully demands strict proof thereof.
11.
This allegation is not directed to this Respondent, and therefore Drake
makes no response; further answering, to the extent any facts alleged therein have
reference to this respondent, has insufficient information to admit or deny any and all
the allegations contained in Paragraph 11, and therefore denies this allegation and
respectfully demands strict proof thereof.
12.
This Respondent has insufficient information to admit or deny knowing
the actual relationship between the parties referenced in this paragraph 12, but further
answering, and upon information and belief, believes the allegations therein to be
true.
13.
Drake admits only so much of Paragraph 13, as follows: that prior to
the planting season for the spring ofthe year 2000, he informed Wabash Valley of the
crops he intended to plant for the year, and that following that arrangement, Wabash
Valley selected an agrichemicaL/fertilizer program to be used on Drake’s farm
property, to be applied at the time of and under the direction and control ofWabash
Valley; further answering, denies the allegations contained in Paragraph 13 which
assert: “at Drake’s express request and with his knowledge, support, and involvement,
5
and in his presence” the activities occurred; further answering has insufficient
information to admit or deny any and all the remaining allegations contained in
Paragraph 13, and therefore denies these remaining allegations and respectfully
demands strict proof thereof.
14.
Drake denies the allegations contained in Paragraph 14.
15.
Drake denies the allegations contained in Paragraph 15.
16.
Drake denies the allegations contained in Paragraph 16.
17.
Drake denies the allegations contained in Paragraph 17.
18.
Drake has insufficient information to admit or deny the allegations
contained in Paragraph 18, and therefore denies them and respectfully demands strict
proof thereof.
19.
Drake denies the allegations contained in Paragraph 19, and
specifically denies the application of any agricultural chemicals or fertilizers on
Drake’ s property in the vicinity of the Zohfeld property since May of the year 2000.
20.
Drake denies the allegations contained in Paragraph 20.
AFFIRMATIVE DEFENSE
L
For his affirmative defenses to the Complaint, Drake says and alleges as
follows:
1.
Drake owned and farmed property in Hamilton County Illinois in the
year 2000. A part ofhis property abuts that of the Complainants to the west and south
of the property of Complainants.
2.
Drake approached Wabash in the spring of 2000, and informed
representatives ofthat company as to what crops he intended to plant that year, and
6
the fertilizer he wanted applied. Thereafter, as customary for Drake and his dealings
with Wabash Valley Service Company, the company made the decision on what
agrichemicals to apply to support that planting.
3.
Prior to the application, he asked Wabash to inform him when ,the
application would occur, and was notified of same, though the decision on how the
application would be made and the equipment to be used was solely that of Wabash.
4.
That although Drake observed the application, he did not direct or
control in any way the process of the application of May 8, 2000 nor the chemicals
which were applied, other than as mentioned above, the initial decision on the
fertilizer he desired to have placed on his fields. The operation of the applicators,
mixing of products for application, and the actual application of those products was
solely within the direction and control of Wabash Valley Service Company.
5.
That the Complainants filed a civil suit against Drake and Wabash
Valley, as well as several manufacturers of agricultural products, alleging injury to
their horses as a result of an alleged spray drift incident on June 26, 1998. Plaintiffs
chose to file it in Hamilton County, but took a voluntary dismissal in December of
2000 and refiled the case in White County. The Respondents requested that the case
be moved back to Hamilton County on a
Forum Non Conveniens
basis which the
White County Court granted, and the Appellate Court affirmed, September 8, 2004.
The case is now pending in Hamilton County involving the present parties, and
discovery is ongoing.
REQUEST
FOR RELIEF
7
WHEREFORE, Respondent Drake by his attorneys, Thomas H. Bryan of the
firm of Fine & Hatfield, a professional corporation, prays the Board to find against
Complainants and for Respondent Drake, and that the Board award all relief just and
proper in the premises.
-
Thomas H. Bryan
U
IN # 2958-82
IL# 328367
A member with the law firm of:
FINE
&
HATFIELD,
A ProfessionalCorporation
520 N.W. Second Street
P.O. Box 779
Evansville, Indiana 47705-0779
Telephone: (812) 425-3592
Attorneys for Robert Drake
Respondent
This document printed on recycled paper
8
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION C0NTR0~iiJL
082005
B 0 A RD
~SThTE
OF
ControlILLINOISBoard
VERNON
AND ELAINE ZOHFELD,
COMPLAINANTS
vs.
CAUSE NO.
PCB 2005-193
ROBERT DRAKE, WABASH
VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D.
HORTON
AND
STEVE
KINDER,
RESPONDENTS
STATUS REPORT PURSUANT TO 35 ILL.
ADMIN.
CODE § 101.514
Comes now Respondent Robert Drake (hereafter “Drake”), by counsel,
Thomas H. Bryan of the firm of Fine & Hatfield, a professional corporation, and for
his Status Report to the Board, states as follows:
1.
That Complainants filed their case styled as “Vernon and Elaine
Zohfeld v. Bob Drake, Wabash Valley Service Company, Michael J. Pfister, Noah D.
Horton, and Steve Kinder” on May 9, 2005 according to the Board’s website, and
service on defendant Drake occurred on May 9, 2005.
2.
No party has appeared other than this party (Bob Drake), by pleading
filed concurrently this date, which pleading is styled as a Motion to Stay and Answer
and Affirmative Defenses in Lieu of Motion to Stay.
3.
It is anticipated that the remaining Respondents will appear by counsel
at or near the same time as this status report is filed.
FINE &
HATFIELD
P.O. BOX 779
EVANSVILLE, INDiANA47705-0779
812 425-3592
4.
There has been no status or scheduling conferences in the matter.
Respectfully submitted:
Thomas H. Bryan
IN #
2958-82
IL#
328367
A member with the law firm of:
FINE
&
HATFIELD,
A ProfessionaCorporation
520 N.W. Second Street
P.O. Box 779
Evansville, Indiana 47705-0779
Telephone: (812) 425-3592
Attorneys for Robert Drake
Respondent
This document printed on recycled paper
2
