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),
To:
NOTICE OF FILING
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center, Suite 11-500
100 West Randolph
Chicago, IL 60601
Jeffrey W. Tock
Hanington
& Tock
Suite 601
Huntington Towers
201
West Springfield Avenue
P.O.
Box
1550
Champaign, IL 61824-1550
Jane E. McBride
Assistant Attorney General
Environmental Law
Bureau
Office ofthe Illinois
Attorney General
500 South Second Street
Springfield,
IL 62706
PLEASE TAKE NOTICE that on July 21, 2005, I filed with the Office ofthe Clerk ofthe
Illinois Pollution Control Board the original
and nine copies of RESPONDENT MURPHY
FARMS, INC.’S RESPONSE TO COMPLAINANT’S MOTION TO STRIKE RESPONDENT
MURPHY’S AFFIRMATIVE DEFENSES, a copy ofwhich is hereby served upon you.
Respectfully submitted,
Charles
M. Gering
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
Complainant,
v.
RECEIVED
CLERK’S OFFICE
JUL
212005
STATE OF ILLINOIS
Pollution Control Board
)
)
)
PCB No. 00-104
(Enforcement)
)
)
)
)
)
)
)
)
Respondents.
(THIS FILING IS MADE ON RECYCLED
PAPER)
Dated: July 21,
2005
Charles M. Gering
McDemwtt Will & Emery LLP
227 West Monroe Street
Chicago, IL 60606
Phone:
312-372-2000
Fax:
312-984-7700
-2-
(THIS FILING IS MADE
ON RECYCLED PAPER)
RECEIVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD
JUL
212005
PEOPLE OF THE STATE
OF ILLINOIS,
)
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.
)
RESPONDENT MURPHY FARMS, INC.’S RESPONSE TO COMPLAINANT’S
MOTION TO
STRIKE
RESPONDENT MURPHY’S AFFIRMATIVE DEFENSES
Respondent
Murphy Farms,
Inc.
(“Murphy”), through
its attorneys, McDermott Will &
Emery LLP,
states the following in response to Complainant’s
Motion to Strike Affirmative
Defenses
(“Motion”):
I.
BACKGROUND
Complainant, People ofthe State of Illinois (“Complainant”), filed this enforcement
action against Murphy alleging that Murphy violated the air and water pollution provisions of
Illinois Environmental Protection Act
(the “Act”) and its
implementing regulations.
These
allegations arose out ofthe operation ofa hog farm by Respondent The Highlands, LLC (“The
Highlands”).
In Murphy’s Answer and Affirmative Defenses to Second Amended Complaint,
Murphy alleged three affirmative defenses:
1.
The Complaint must be dismissed because Complainant’s claims against Murphy
are barred by the doctrine oflaches.
(THIS FILING
IS MADE ON
RECYCLED PAPER)
2.
The Complaint must be dismissed to the extent that Complainant’s claims against
Murphy are barred by applicable statutes oflimitation or other applicable limitations periods.
3.
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 ofthe conduct
required to
comply with the Act and that certain factors affecting the propagation ofodors are
variable and cannot reasonably be controlled.
The Complainant now moves to
strike Murphy’s affirmative defenses.
Murphy hereby
withdraws its
second affirmative defense.
However, for the reasons discussed below, the
Complainant’s Motion should be denied with respect
to Murphy’s first and third affirmative
defenses.1
II.
MURPHY’S
FIRST AFFIRMATIVE DEFENSE
SHOULD NOT BE STRICKEN
BECAUSE THE FACTS GIVING RISE TO MURPHY’S LACHES DEFENSE
WOULD NOT TAKE THE
COMPLAINANT BY SURPRISE, AND BECAUSE
MURPHY
HAS RAISED THE POSSIBILITY
OF PREVAILING ON LACHES.
The Complainant
asserts in
its Motion that Murphy’s
first affirmative
defense 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 ofor defeats a cause of action
set forth
in the Complainant’s complaint.
(Motion at 4.)
With these arguments, the Complainant
misstates the pleading standard applicable to this case and improperly
asks the Board to decide
Alternatively,
in the event that the
Board determines that
either Murphy’s first or third affirmative defense should
be stricken,
Murphy respectfully requests leave
to amend its answer or to otherwisere-plead the
stricken affirmative
defense.
See
735
ILCS 5/2-616 (providing
that amendments to pleadings “may be allowed on just
and reasonable
terms”).
Given the
early stage of this litigation, permitting Murphy to re-plead its affirmative defenses would not
prejudice
the Complainant and would be just and reasonable.
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(THIS
FILING IS MADE
ON RECYCLED PAPER)
the merits ofthe affirmative defense.
Therefore, the Board
must deny
the Complainant’s Motion
to
Strike with respect to
Murphy’s first affirmative defense.
Murphy has sufficiently pled
its affirmative defense based on laches.
The Board has
stated that section 2-6l~(d)ofthe Code ofCivil Procedure provides guidance regarding the
pleading of affirmative defenses.
People
v.
Midwest Grain,
PCB
97-179 (Aug. 21,
1997), slip
op.
at 3.
This section provides,
in relevant part, that “the
facts constituting any
affirmative
defense.
.
.
which, if not expressly stated in the pleading, would be likely to take the opposite
party by surprise, must be plainly set forth
in the answer.”
735
ILCS
5/2-613(d).
The Illinois
Supreme Court has interpreted this provision to
mean that a defendant is not required to restate
facts already adequately pled in the complaint in order to raise an
affirmative defense based
thereon.
Fitzpatrick v.
City of Chicago,
112
III. 2d 211,
217-19, 492 N.E.2d 1292,
1294-95
(1986).
In this case, Murphy pled in
its answer that the Complainant’s complaint must be
dismissed because the Complainant’s claims against Murphy are barred by the doctrine oflaches.
Laches is an equitable doctrine that bars reliefwhen a defendant has been misled orprejudiced
due
to
a plaintiff’s delay in
asserting a right.
People
v.
QC Finishers, Inc.,
PCB 01-7 (July 8,
2004),
slip op. at 8.
There are two principal elements of laches:
lack of due diligence by the
party asserting the claim, and
prejudice to the opposing party.
Id.
The Complainant’s Second Amended Complaint alleges that the Illinois Environmental
Protection Agency (“IEPA”) received letters from Doug Lenhart, Director ofIllinois Operations
for Murphy Family Farms, and James Baird,
a member ofThe Highlands, which provided
descriptions ofthe proposed new swine production facility.
(Second Am. Compl.
at
¶~
33-34.)
-3-
(THIS FILING
IS
MADE ON RECYCLED PAPER)
The Second Amended Complaint further alleges that IEPA’s responses “indicated a potential for
possible odor problems” but did not state that the new facility, as proposed, would
violate the
Act or its implementing regulations.
(See Id.)
IEPA’s failure to
object to the proposed location
of, or the proposed operation ofThe Highlands’
farm resulted in prejudice to
Murphy; if IEPA
had advised Murphy and The Highlands that it objected to
the proposed facility, Murphy and The
Highlands would have had the opportunity to
investigate options to address EPA’s objections.
Instead, IEPA waited until The Highlands constructed and began operation ofits
farm, then
complained about the location and operation of the farm consistent with The Highlands’
proposal.
The facts alleged in the Complainant’s Second Amended Complaint provide the basis
for Murphy’s affirmative
defense based on
laches.
Consequently,
Complainant could not be
surprised by the factual basis for Murphy’s laches defense, and Murphy has sufficiently pled its
affirmative defense.
Murphy has adequately pled an affirmative defense oflaches and
has therefore raised the
possibility that Murphy will prevail
on this defense.
However, the Complainant argues
that this
affirmative defense must be
stricken because “Murphy has failed to plead facts as to how this
case qualifies as one
exhibiting exceptional circumstances” required to
apply laches to
a public
body.
(Motion at
4-5.)
The Complainant improperly asks the Board
to decide the merits ofthe
affirmative defense because Murphy does not have to prove,
at
this stage ofthe proceeding,
that
there are compelling circumstances in this
case for the application oflaches.
-4-
(THIS FILING IS
MADE ON RECYCLED
PAPER)
III.
MURPHY’S THIRD AFFIRMATIVE DEFENSE SHOULD NOT BE
STRICKEN
BECAUSE MURPHY IS NOT REQUIRED TO
PROVE THE MERITS OF’ITS
AFFIRMATIVE DEFENSE
AT THIS
TIME.
Murphy’s third affirmative defense argues that the Complainant’s complaint must be
dismissed because “the Act, as applied to
alleged odorviolations,
is unconstitutionally vague in
that it does not provide adequate notice ofthe conduct required to comply
with the Act and that
certain factors affecting the propagation of odors are variable and
cannot reasonably be
controlled.”
(Answer at 34-35.)
The Complainant
states that
this affirmative defense should be
stricken because “the
factors Respondent Murphy raised
in its
affinnative defense,
sic
are
factors applicable to the standards
identified in the case law pertinent to odor air pollution in
Illinois.”
(Motion at
15.)
More specifically, the Complainant argues that
Murphy’s affirmative
defense was rejected by
City ofMonmouth v.
Pollution Control Board,
57
Ill.
2d 482,
313
N.E.2d 161
(1974).
Complainants’ response improperly puts the burden on Murphy to prove
that its
affirmative defense will be successful.
However, Murphy is not required to
prove the merits of
its affirmative
defense at this time.
See People
v.
Aargus Plastics,
Inc.,
PCB 04-09 (May 20,
2004), slip op.
at
9.
Instead, Murphy is only required to
“plead the defense in
order to provide
sufficient notice to
the complainant to respond
to the affirmative defense.”
Id.
In its answer,
Murphy has pled its affirmative defense regarding the unconstitutionality of the Act
as applied to
odor violations,
and this pleading provides a sufficient basis to
place the Complainant
on notice
ofthe affirmative defense.
Therefore, the Board must deny the Complainant’s Motion to
Strike
Murphy’s
third affirmative defense.
-5-
(THIS FILING IS
MADE
ON
RECYCLED PAPER)
IV.
CONCLUSION
For the foregoing reasons, Murphy respectfully requests that the Board deny the
Complainant’s Motion to
Strike Murphy’s
first and third affirmative defenses.
Dated: July 21, 2005
Respectfully submitted,
MURPHY FARMS, INC.
Charles M. Gering
McDermott Will
& Emery LLP
227 West Monroe Street
Chicago, Illinois 60606
Phone: 312-372-2000
Fax:
312-984-7700
By:
One of its
attome
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(THIS FILING IS MADE
ON RECYCLED PAPER)
CERTIFICATE OF SERVICE
I, the undersigned attorney,
certify that on July 21, 2005,
I served the foregoing attached
RESPONDENT MURPHY FARMS, INC.’S
RESPONSE TO COMPLAINANT’S MOTION
TO
STRIKE RESPONDENT MURPHY’S AFFIRMATIVE DEFENSES,
by U.S. Mail with
proper postage prepaid upon:
One copy:
Bradley Halloran
Hearing Officer
Illinois
Pollution Control Board
James R. Thompson Center, Suite
11-500
100 West Randolph
Chicago, IL 60601
Jeffrey W.
Tock
Harrington & Tock
Suite
601
Huntington Towers
201
West Springfield Avenue
P.O.
Box
1550
Champaign, IL
61824-1550
Original and nine copies:
Clerk, Illinois Pollution
Control Board
100 W.
Randolph Street
State of Illinois Center
James R.
Thompson Center, Suite
11-500
100 West Randolph
Chicago, IL 60601
Jane E.
McBride
Assistant Attorney General
Environmental Law Bureau
Office ofthe Illinois Attorney General
500 South
Second Street
Springfield,
IL 62706
Dated: July21,
2005
CH199
4501369-2,047331.0013
Charles M. Gering
/
(THIS FILING IS
MADE ON RECYCLED
PAPER)
