ILLINOIS POLLUTION CONTROL BOARD
June 15, 2006
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 June 7, 2005, Murphy Farms, Inc. (Murphy Farms) filed an answer and affirmative
defenses in response to the complainant’s second amended complaint. On July 5, 2005, the
Office of the Attorney General, on behalf of the People of the State of Illinois (People), moved to
strike the alleged affirmative defenses. On October 20, 2005, the Board allowed Murphy Farms
to withdraw the second alleged affirmative defense and granted the People’s motion to strike
Murphy Farms’ third alleged affirmative defense. The Board did not rule on the alleged
affirmative defense of
laches
, but rather allowed Murphy Farms to amend the pleadings
regarding that affirmative defense. On October 31, 2005, Murphy Farms filed an amended
affirmative defense based on
laches
as to all counts of the second amended complaint.
On April 26, 2006, the People moved to strike Murphy Farms’ amended affirmative
defense, claiming that
laches
may not be used as an affirmative defense in this matter. Murphy
Farms responded on May 9, 2006. On May 26, the People filed a reply. As set forth in more
detail below, the Board denies the People’s motion to strike as untimely and directs the hearing
officer to proceed expeditiously to hearing.
BACKGROUND
Count I of the People’s second amended complaint 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) (2004); 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) (2004); 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)
2
(2004); 35 Ill. Adm. Code 501.405(a). The complaint concerns respondents’ swine facility
located just south of Williamsfield in Elba Township, Knox County.
On June 7, 2005, Murphy Farms moved the Board for a one-day extension and answered
the People’s second amended complaint. On the same day, Murphy Farms also alleged three
affirmative defenses to the alleged violations. Murphy Farms claimed all of the violations
alleged in the complaint are be barred by the doctrine of
laches
as well as the applicable statutes
of limitation. Murphy Farms also alleged the alleged odor violations must be dismissed as
unconstitutionally vague. The People moved the Board to strike all three of the affirmative
defenses. In its response, Murphy Farms withdraws the statutes of limitations defense. After
considering the parties’ arguments, the Board grants the People’s motion to strike the remaining
two defenses, yet allows Murphy Farms to re-plead the defense of
laches
in an amended or
supplemental answer.
LEGAL FRAMEWORK
Section 3.115 of the Act defines “air pollution” as:
presence in the atmosphere of one or more contaminants in sufficient quantities
and of such characteristics and duration as to be injurious to human, plant, or
animal life, to health, or to property, or to unreasonably interfere with the
enjoyment of life or property. 415 ILCS 5/3.115 (2004).
Section 3.165 of the Act defines “contaminant” as:
any solid, liquid, or gaseous matter, any odor, or any form of energy, from
whatever source. 415 ILCS 5/3.165 (2004).
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) (2004).
MOTION TO STRIKE AFFIRMATIVE DEFENSES
Standard of Review
The Board’s procedural rules provide that “any facts constituting an affirmative defense
must be plainly set forth before hearing in the answer or in a supplemental answer, unless the
affirmative defense could not have been known before hearing.” 35 Ill. Adm. Code 103.204(d).
In a valid affirmative defense, the respondent alleges “new facts or arguments that, if true, will
defeat . . . the government’s claim even if all allegations in the complaint are true.” People v.
Community Landfill Co., PCB 97-193, slip op. at 3 (Aug. 6, 1998).
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The Board has also defined an affirmative defense as a “response to a plaintiff’s claim
which attacks the plaintiff’s legal right to bring an action, as opposed to attacking the truth of
claim.” Farmer’s State Bank v. Phillips Petroleum Co., PCB 97-100, slip op. at 2, n. 1 (Jan. 23,
1997) (quoting
Black’s Law Dictionary
). Furthermore, if the pleading does not admit the
opposing party’s claim, but instead attacks the sufficiency of that claim, it is not an affirmative
defense. Warner Agency v. Doyle, 121 Ill. App. 3d 219, 221, 459 N.E.2d 663, 635 (4th Dist.
1984).
A motion to strike an affirmative defense admits well-pled facts constituting the defense,
only attacking the legal sufficiency of the facts. Int. Ins. Co. v. Sargent and Lundy, 242, Ill. App.
3d 614, 630-31, 609 N.E.2d 842, 853-54 (1st Dist. 1993); citing Raprager v. Allstate Ins. Co.,
183 Ill. App. 3d 847, 854, 539 N.E.2d 787 (1989). “Where the well-pleaded facts of an
affirmative defense raise the possibility that the party asserting them will prevail, the defense
should not be stricken.” Int. Ins.
, 609 N.E.2d at 854.
Murphy Farms’ Laches Allegations
In its answer, Murphy Farms alleged that the second amended complaint must be
dismissed in its entirety because the claims against Murphy Farms are barred by
laches
. Am.
Ans. at 1. Murphy Farms alleges that during 1996 and 1997 representatives from Murphy Farms
and the Highlands spoke with Mr. Ackerman, of the Agency, about plans to construct a new hog
farm. Murphy Farms states that on September 4, 1996, Mr. Kammueller, Manager of the
Agency’s Peoria’s Regional Office wrote a letter to Murphy Farms stating “[t]he description you
provided of the new facility indicates that a potential for possible odor problems does exist.”
Id
.
at 2. Murphy Farms contends that a letter written by Mr. Kammueller dated May 20, 1997
contains a similar statement.
Id
.
Construction of the Highlands’ farm, in accordance with the plans as reviewed by the
Agency, began in 1997. The Agency inspected the farm in April 23, 1998, once the farm was
complete and operational. Am. Ans. at 2. Murphy Farms stated that “[t]he Complainant
1
did not
attempt to contact Highlands or Murphy before or during the construction of the Highlands’ farm
to inform Highlands or Murphy that the farm’s location or operations would violate the Act.”
Id
.
at 3.
Murphy Farms contends that when Murphy Farms and the Highlands presented the
Agency with the proposal for the new swine production facility, the Agency’s failure to object to
the proposed location at that time prejudiced Murphy Farms. Am. Ans. at 4. Murphy Farms
states that both it and Highlands relied on the Agency’s omission to object to the proposed
location in believing that the farm complied with the Act. If Highlands and Murphy Farms had
known that the farm’s location and operation would violate the Act, Murphy Farms argues that
Highlands could have changed the location and operations of the farm. For these reasons,
Murphy Farms claims that the affirmative defense of
laches
bars the People’s complaint.
Id
. at
4-5.
1
The Board assumes Murphy Farms is referring to the Agency.
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The People’s Arguments
The People’s primary argument is that Murphy Farms had notice and knowledge long
before constructing the facility of the Agency’s recommendation that the location and operation
of the swine facility be carefully evaluated due to the potential for odor emissions. Mot. at 2.
The People state that even equipped with that knowledge, Murphy Farms proceeded with
construction of the facility. Because Murphy Farms proceeded at its own risk, the People argue
Murphy Farms eliminated the availability of
laches
as an affirmative defense. Mot. at 3.
The People argue that letters sent by Mr. Kammueller to representatives of both the
Highlands and Murphy Farms stated that the Agency had neither siting or construction permit
authority and could not approve or disapprove the proposed location and construction. Mot. at 4.
The People further contend that the letters specifically cite to Section 9(a) of the Act, the Act’s
air pollution prohibition, and warn the respondents that compliance with the regulatory setback
provisions applicable to a livestock operation does not constitute a shield from potential air
pollution violations.
Id
.
According to the People, the respondent’s claim that the Agency did not conduct an
inspection of the facility until April 23, 1998, is false. The People state that inspections were
conducted on August 26, 1997 and on October 16, 1997. Mot. at 5; citing Kammueller Exh. 3
and 4. The People reiterate that the respondents knew that the Agency believed the location of
the Highlands facility had the potential to result in violation of the Act, yet nonetheless
proceeded with its construction and operations. Where the circumstances indicate that the party
knowingly violated a restriction or a right and pressed ahead, argues the People,
laches
may not
be used as an affirmative defense. Pettey v. First Nat. Bank of Geneva, 225 Ill. App. 3d 539, 588
N.E.2d 412 (2d Dist. 1992); Fick v. Burnham, 251 Ill. App. 333 (1929).
Murphy Farm’s Response the Motion to Strike
Murphy Farms claims the People’s motion to strike is untimely because it was filed more
than six months after the amended affirmative defense based on
laches
. Resp. at 2; citing 35 Ill.
Adm. Code 101.506 (requiring all motions to strike a pleading to be filed within 30 days after the
service of the challenged document); People v. Skokie Valley Asphalt Co., PCB 96-98 slip op. at
6 (June 5, 2003).
Further, Murphy Farms argues that the People references material not in the pleadings.
Consequently, Murphy Farms asserts that the Board should not consider these extraneous
materials because a motion to strike should only address the sufficiency of the allegations that
appear on the face of the pleadings. Resp. at 3.
Murphy Farms claims that the People do not argue that Murphy Farms has not adequately
plead the elements necessary to constitute
laches
, but rather contests the validity of facts relied
on by Murphy Farms. Murphy Farms argues that whether the defense has merit should be
addressed at hearing, not in pleadings. The defense is legally sufficient as plead, argues Murphy
Farms, and the Board should deny the People’s motion to strike.
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The People’s Reply
On May 26, 2006, the People filed a motion for leave to file
instanter
a reply to the
motion to strike. The Board grants the People’s motion and accepts the reply.
The People argue that the motion to strike is proper because it attacks the legal
sufficiency of the defense. The People contend that the facts Murphy Farms has pled are
insufficient to constitute
laches
. Specifically, the People assert that Murphy Farms has failed to
plead a lack of due diligence by the Agency or prejudice to itself. Reply at 3. The People
conclude that the motion to strike was properly pled and the Board should strike Murphy Farms’
amended affirmative defense as legally insufficient.
Id
.
Board Analysis
Generally all motions to strike, dismiss or challenge a pleading must be filed within 30
days after service of the pleading unless the Board determines that material prejudice would
result.
See
35 Ill. Adm. Code 101.506. The Board finds that no material prejudice would result
from allowing Murphy Farms to address the merits of the affirmative defense of
laches
at
hearing. The People did not request additional time to file a motion to strike within 30 days of
service of the amended affirmative defense. Accordingly, the Board denies the motion to strike
as untimely.
Conclusion
The Board denies the People’s motion and directs the hearing officer to proceed
expeditiously to hearing.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on June 15, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
