Lisa Madigan
At TORNEY GENERAL,
The Honorable Dorothy Gunn
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph
Chicago, Illinois 60601
Dear Clerk Gunn
:
Enclosed for filing please find the original and ten copies of a NOTICE OF FILING and
MOTION TO FILE COMPLAINANT'S MOTION TO STRIKE RESPONDENT'S AMENDED
AFFIRMATIVE DEFENSE
INSTANTER,
MOTION FOR LEAVE TO REPLY TO RESPONDENT
MURPHY FARMS RESPONSE TO COMPLAINANT'S MOTION TO STRIKE RESPONDENT'S
AMENDED AFFIRMATIVE DEFENSE, and REPLY TO RESPONDENT MURPHY FARMS'
RESPONSE TO COMPLAINT'S MOTION TO STRIKE RESPONDENT MURPHY'S AMENDED
AFFIRMATIVE DEFENSE 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 envelope
.
Thank you for your cooperation and consideration
.
Very truly yours,
r,~,UF11 .\
.\C
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
May 24, 2006
Re :
People v
. The Highlands, LLC., et al
.
PCB No . 00-104
Jane E . McBride
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
1001 Fast Main, Carbondale, Illinois 62901 • (618) 5Z9-6400
•
TTY
. (618) 529-6403 • Fax . (618) 529-6416
RECEIVEDCLERK'S
OFFICE
MAY 2 6 2006
STATE OF ILLINOIS
Pollution Control Board
JEM/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706
• (217) 782-1090 • TFY: (217) 785-2771
•
Fax : (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
• (312) 814-3000 • TTY
: (312) 814-3374 •
Fax : (312) 814-3806
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RECEIVEDCLERK'S
OFFICE
MAY 2 6 2006
STATE OF ILLINOIS
Pollution Control Board
PEOPLE OF THE STATE OF ILLINOIS,
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),
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : May 24, 2006
Complainant,
Respondents .
NOTICE OF FILING
To:
Mr
. Jeffrey W. Tock
Mr. Charles M . Gering
Harrington, Tock & Royse
Foley & Lardner
201 W . Springfield Avenue, Ste
. 601
321 N . Clarke St
.
P .O. Box 1550
Suite 2800
Champaign, IL 61824-1550
Chicago, IL 60610-4764
PLEASE TAKE NOTICE that on May 24, 2006, I mailed for filing with the Clerk of the
Pollution Control Board of the State of Illinois, a MOTION TO FILE COMPLAINANT'S MOTION TO
STRIKE RESPONDENT'S AMENDED AFFIRMATIVE DEFENSE
INSTANTER, MOTION FOR
LEAVE TO REPLY TO RESPONDENT MURPHY FARMS RESPONSE TO COMPLAINANT'S
MOTION TO STRIKE RESPONDENT'S AMENDED AFFIRMATIVE DEFENSE, and REPLY TO
RESPONDENT MURPHY FARMS' RESPONSE TO COMPLAINT'S MOTION TO STRIKE
RESPONDENT MURPHY'S AMENDED AFFIRMATIVE DEFENSE, copies of which are attached
hereto and herewith served upon you
.
Respectfully submitted,
PCB NO. 00-104
(Enforcement)
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: JANE
E . McBRIDE
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on May 24, 2006, 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, MOTION TO FILE COMPLAINANT'S
MOTION TO STRIKE RESPONDENT'S AMENDED AFFIRMATIVE DEFENSE
INSTANTER,
MOTION FOR LEAVE TO REPLY TO RESPONDENT MURPHY FARMS RESPONSE TO
COMPLAINANT'S MOTION TO STRIKE RESPONDENT'S AMENDED AFFIRMATIVE
DEFENSE, and REPLY TO RESPONDENT MURPHY FARMS' RESPONSE TO COMPLAINT'S
MOTION TO STRIKE RESPONDENT MURPHY'S AMENDED AFFIRMATIVE DEFENSE
To:
Mr. Jeffrey W . Tock
Mr. Charles M. Gering
Harrington, Tock & Royse
Foley & Lardner LLP
201 W
. Springfield Avenue, Ste . 601
321 N
. Clarke St.
P.O . Box 1550
Suite 2800
Champaign, IL 61824-1550
Chicago, IL 60610-4764
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 and by facsimile
(312) 814-3669
To :
Mr. Brad Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Ste . 11-500
100 West Randolph
Chicago, IL 60601
This filing is submitted on recycled paper
.
ne E . McBride
Assistant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
RECEIVED
)
CLERK'S
OFFICE
Complainant,
MAY 2 6 2006
)
V .
)
PCB No .
00-10A STATE OF
ILLINOIS
(Enforcement) Pollution
Control Board
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 TO
FILE COMPLAINANT'S MOTION TO STRIKE RESPONDENT'S AMENDED
AFFIRMATIVE DEFENSEINSTANTER
NOW COMES Complainant, People of the State of Illinois,
ex rel . Lisa Madigan,
Attorney General of the State of Illinois, and moves the Hearing Officer for leave to file
Complainant's motion to strike respondent's amended affirmative defense
instanter, on the
following grounds and for the following reasons :
1 .
Complainant originally intended the subject filing to be a reply, but upon
reviewing the issues presented determined a motion to strike was the appropriate first pleading
.
2.
Discovery in this matter is still incomplete
. No depositions have been taken . At
the time of the February 16, 2006 status conference, the discovery schedule was stayed to
facilitate settlement discussions
. Settlement discussions have continued to this date
. Progress
has been made toward settlement of this matter
. The discovery schedule has not been
reinstated
. The Respondent will not be prejudiced by any means if the Board allows the filing of
the Motion to Strike
.
WHEREFORE, for the foregoing reasons, Complainant respectfully requests that the
Board grant the People's motion for leave to file its motion to strike Respondent's amended
affirmative defense instanter.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel
. LISA MADIGAN, Attorney General
of the State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement Division
BY:
a"7 c~c~
JANE E . MCBRIDE
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R
ERK'E
I V1ED
MAY 2 6 2006
PCB No.
00-10$STATE OF ILLINOIS
(Enforcement)
ollution Control Board
PEOPLE OF THE STATE OF ILLINOIS
Complainant,
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) .
MOTION FOR LEAVE TO REPLY
TO RESPONDENT MURPHY FARMS RESPONSE TO COMPLAINANT'S
MOTION TO STRIKE RESPONDENT'S AMENDED AFFIRMATIVE DEFENSE
NOW COMES Complainant, People of the State of Illinois, ex rel
. Lisa Madigan,
Attorney General of the State of Illinois, and moves the Hearing Officer for leave to reply to
Respondent Murphy Farms, Inc's response to Complainant's Motion to Strike Respondent's
Amended Affirmative Defense on the following grounds and for the following reasons
:
1 .
Complainant originally intended the subject filing to be a reply, but upon
reviewing the issues presented determined a motion to strike was the appropriate first pleading
.
2.
Respondent, in its response, has raised issues of untimely filing
. Complainant
will be materially prejudiced if it is not allowed to reply to this issue
.
3.
Further, Respondent, in its response, raised issues of the proper means of
supporting a motion to strike
. Again, Complainant will be materially prejudiced if it is not
allowed to reply to this issue
.
4 .
Discovery in this matter is still incomplete
. No depositions have been taken
. At
the time of the February 16, 2006 status conference, the discovery schedule was stayed
. The
Respondent will not be prejudiced at this juncture if the Hearing Officer allows the issues raised
in Respondent's response to be fully briefed
.
WHEREFORE, for the foregoing reasons, Complainant respectfully requests that the
Hearing Order grant the People leave to reply to Respondent's response
.
Respectfully submitted,
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel. LISA MADIGAN, Attorney General
of the State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement Division
BY : Z---
. _
JANE E
. MCBRIDE
Assistant Attorney General
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARDRCLERK'S
ECE
OFFICE
~
VED
j
MAY 2 6 2006
Complainant,
)
PCB No . 00-10~,oluton
Con
ILLINOIS
(Enforcement)
ol Board
PEOPLE OF THE STATE OF ILLINOIS
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 .
REPLY TO RESPONDENT MURPHY FARMS' RESPONSE TO COMPLAINANT'S MOTION
TO STRIKE RESPONDENT MURPHY'S AMENDED AFFIRMATIVE DEFENSE
NOW COMES, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex rel. Lisa
Madigan, Attorney General of the State of Illinois, and hereby replies to Respondent Murphy
Farms' Response to Complainant's Motion to Strike Respondent's Amended Affirmative
Defense :
I .
COMPLAINANT'S MOTION TO STRIKE
WAS FILED PRIOR TO COMPLETION OF
DISCOVERY . N O
DEPOSITIONS HAVE BEEN TAKEN
. THE LITIGATION WAS
STAYED AT THE TIME OF FILING AND CONTINUES TO BE STAYED TO
FACILITATE SETTLEMENT DISCUSSIONS
. THE RESPONDENT HAS NOT BE
UNDULY PREJUDICED OR HARMED IN ANY MANNER
.
1 .
At the time of the February 16, 2006 hearing officer status conference in this
matter, the Hearing Officer asked the Complainant if it intended to file a replying, noting there
was no deadline to do so
. Counsel for the Complainant indicated it was her practice to file a
reply in the alternative, contemporaneously and conjunction with a motion to strike
. Noting
such was evidently in this matter, she indicated she would be filing a reply
. She indicated she
would do so immediately
. The Hearing Officer said there was no rush, but he just needed to
ascertain the status of the pleadings
.
2.
Upon reviewing the issues at hand pertaining to Respondent's claim of laches,
Complainant determined that the more appropriate first pleading was a motion to strike
.
3 .
With this filing, Complainant has contemporaneously filed a motion for file its
motion to strike
instanterto address the issue of timing .
4 .
Discovery in this matter is still incomplete
. No depositions have been taken .
Final written discovery remains open pursuant to the now stayed discovery schedule . At the
time of the February 16, 2006 status conference, the discovery schedule was stayed to facilitate
settlement discussions
. Settlement discussions have continued to this date . Progress has
been made toward settlement of this matter . The discovery schedule has not been reinstated
.
The Respondent will neither by prejudiced or harmed by any means if the Board allows the filing
of the Motion to Strike .
II .
THE PLEADING FILED BY COMPLAINANT, INCLUDING THE AFFIDAVIT AND
ATTACHED EXHIBITS, ARE COMPLETELY PROPER TO ADDRESS WHETHER OR
NOT RESPONDENT HAS SUFFICIENTLY PLED FACTS OF BOTH ELEMENTS OF
LACHES SO AS TO DEFEAT THE CAUSE OR ACTION OR AVOID THE LEGAL
EFFECT OF THE ASSERTED CLAIM .
5 .
As set forth in Respondent's response, page 4, first full paragraph, a motion to
strike an affirmative defense admits well-pled facts constituting the defense, only attacking the
legal sufficiency of the facts
. Citations omitted .
6 .
Complainant's motion to strike attacks the legal sufficiency of the facts pled by
Respondent . Complainant, in its motion to strike, contends that the Respondent has not pled
laches
. The facts Respondent has pled are insufficient to constitute laches, that is, as pled the
facts do not constitute the two elements of laches
.
7.
As stated in the Respondent's response, page 4, "What facts will combine to
constitute laches is to be determined in light of the circumstances of each case
." Citation
omitted here
. As shown by Complainant's motion, in this case, the facts Respondent has pled
in support of its claim of laches, are insufficient to constitute laches in this case
.
2
8 .
Given the material presented in Complainant's motion, properly supported by
affidavit and exhibits, Respondent has failed to plead a lack of due diligence in this case on the
part of the party asserting the original claim, and the Respondent has also failed to plead
prejudice to itself
. In fact, as very aptly pled in Complainant's motion, the Illinois EPA was very
diligent in warning Respondent of the possibility of violation and then subsequently raising
compliance issues at the time of construction inspections and inspections conducted in
response to complaints
. Respondent was no prejudiced because it has proceeded at its own
peril .
III.
COMPLAINANT'S MOTION TO STRIKE SHOULD BE GRANTED BECAUSE
RESPONDENT MURPHY'S
CLAIM THAT
THE MOTION LENDS CREDENCE TO ITS
ARGUMENT THAT THE ILLINOIS EPA "SAT BACK" AND LET
IT VIOLATE IS
WITHOUT MERIT
9.
In its response to the motion and supporting material, Respondent Murphy has
the audacity to continue to persist in its argument that, somehow, the Illinois EPA had the
authority to stop it from constructing the Highlands in the manner that it did, based on the
circumstances at the time
. This issue is fully briefed, with the benefit of supporting material in
Complainant's Motion
. For whatever reason, Respondent continues to persist in its position
with this alleged affirmative defense of laches, that somehow, the Illinois EPA is responsible for
the fact the Respondent persisted on its path toward non-compliance despite the Illinois EPA's
diligent efforts to get the Respondent to consider and address all the important pertinent factors
that impact large livestock confinement facilities
. The Motion to Strike amply addresses the
fallacy of this alleged affirmative defense, by properly attacking the legal sufficiency of the facts
pled .
3
WHEREFORE, on the foregoing grounds, Complainant respectfully requests that the
Board strike Respondent Murphy's Amended Affirmative Defense
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel . LISA MADIGAN, Attorney General
of the State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement Division
BY: eJANE
-e
E
211
. MCBRIDE
c
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
4
