Lisa Madigan
ATTORNEY 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
REPLY TO 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,
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
June 23, 2006
Re:
People
v. The Highlands, LLC., et at
PCB No. 00-104
CLERK
RECEIVED
CLERK'S
OCE
JUN 2 8 2006
Pollution
STATE OF
Control
ILLINOISBoard
Jane E . McBride
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
JEM/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706 •
(217) 782-1090 • TTY : (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
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400
• TTY: (618) 529-6403 • Fax
: (618) 529-6416
To:
Mr. Jeffrey W . Tock
Harrington, Tock & Royse
201 W
. Springfield Avenue, Ste . 601
P .O . Box 1550
Champaign, IL 61824-1550
PLEASE TAKE NOTICE that on June 23, 2006, I mailed for filing with the Clerk of the
Pollution Control Board of the State of Illinois, a REPLY TO RESPONDENT MURPHY'S
AMENDED AFFIRMATIVE DEFENSE, copies of which are attached hereto and herewith served
upon you .
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : June 23, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
V .
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),
Respondents
.
NOTICE OF FILING
RECEIVEDCLERK'S
OFFICE
JUN Z 8 2006
Pollution
STATE OF
Control
ILLINOISBoard
PCB NO. 00-104
(Enforcement)
Mr. Charles M . Gering
Foley & Lardner
321 N . Clarke St.
Suite 2800
Chicago, IL 60610-4764
Respectfully submitted,
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
G
E
.
~
McBRIDE
zl>115-4T
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on June 23, 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 and REPLY TO 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
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
.
Aafie E
. McBride
Assistant Attorney General
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
JUN 2 8 2006
STATE OF ILLINOIS
Pollution Control Board
)
v.
)
PCB No . 00-104
(Enforcement)
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) .
Respondents .
REPLY TORESPONDENT
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 replies as follows to Respondent
Murphy
Farms, Inc's ("Respondent Murphy" or "Murphy Farms, Inc
.") Amended Affirmative Defense :
Background
On April 26, 2006, Complainant moved to strike Murphy Farms' amended
affirmative defense .
2 .
On May 9, 2006, Respondent Murphy responded .
3 .
On May 26, 2006, Complainant filed a reply to Respondent's response, and filed
a motion to file the motion to strike instanter.
4 .
On June 15, the Board denied Complainant's motion to strike
. Complainant
received said order on June 21, 2006 .
5 .
In that the Board has denied the motion to strike, Complainant herein files its
reply to the amended affirmative defense
.
Complainant's Reply
6 .
The first paragraph of Respondent's Amended Affirmative Defense is:
1 .
On July 5 and August 14, 1996, Doug Lenhart, the Director of Illinois
Operations for Murphy, contacted Eric Ackerman of the Illinois
Environmental Protection Agency ("IEPA") to discuss Highlands' plans to
construct a new hog farm
. On May 6, 1997, James Baird of Highlands
contacted Mr
. Ackerman regarding the same proposed farm
. During
these conversations, Messers
. Lenhart and Baird provided a description
of the new farm to Mr
. Ackerman, including its proposed locations and
operations.
Reply
Complainant admits that Doug Lenhart, the Director of Illinois Operations for Murphy,
contacted Eric Ackerman of the Illinois Environmental Protection Agency ("IEPA") on July 5 and
August 14, 1996 to discuss proposed construction of a swine facility
. Complainant denies that
the topic of those discussions was the Highlands
. As set forth in Exhibit 1 attached to the
Affidavit of James Kammueller attached to and filed in support of Complainant's Motion to
Strike Respondent's Amended Affirmative Defense, the Illinois EPA's documentation of the
calls indicates that Mr
. Lenhart called to discuss a swine production facility proposed for a site
in Peoria County near Elmwood
. The Highlands is located near Williamsfield in Knox County
.
Complainant affirmatively states that prior to entering into a working arrangement with Doug
Baird, upon information and belief Murphy Farms was considering entering into a working
relationship with David Inskeep to construct a swine facility in conjunction with or instead of the
dairy facility that was eventually constructed and became known as Inwood Dairy, located near
Elmwood in Peoria County
. At the time of the July 5 and August 14, 1996 calls, Mr
. Lenhart
was calling about a proposed facility near Elmwood, not the Highlands .
Complainant admits that James Baird had a phone conversation with Eric Ackerman on
May 6, 1997, but denies that the topic of that conversation was "the same proposed farm"
.
James Baird did not call to discuss the swine facility proposed for a site near Elmwood in Peoria
County
.
2
The last sentence of Respondent's first paragraph is "During these conversations,
Messrs
. Lenhart and Baird provided a description of the new farm to Mr . Ackerman, including its
proposed location and operations
." Complainant neither admits or denies this statement in that
it is unclear as to which "new farm" is the subject of this statement .
7 .
The second paragraph of Respondent's Amended Affirmative Defense is :
2 .
On September 4, 1996, James Kammueller, Manager of the (EPA's
Peoria Regional Office, wrote a letter to Mr . Lenhart regarding the
proposed farm. The letter stated that "[t]he description you provided of
the new facility indicates that a potential for possible odor problems does
exist ." Mr . Kammueller wrote a letter to Mr . Baird on May 20, 1997 and
similarly stated that "[t]he description provided of your proposed new
swine facility indicates that a potential for possible odor problems does
exist ." However, Mr. Kammueller did not state in either letter that the new
farm, as proposed, would violate the Illinois Environmental Protection Act
(the"Act") . Furthermore, Mr . Kammueller did not object of the proposed
location or operations of the new farm .
Reply
Complainant admits James Kammueller wrote a letter to Doug Lenhart dated
September 4, 1996, but neither admits or denies the letter concerns "the proposed farm"
because it is unclear from the Respondent's statement what farm and location constitute the
subject of this statement . Complainant neither admit or denies the exact wording of the content
of the referenced letters, but rather affirmatively states the documents speak for themselves .
Both documents are attached, as Exhibits 1 and 2, to the Affidavit of James Kamueller filed in
this matter with Complainant's Motion to Strike this amended affirmative defense . Complainant
neither admits nor denies the last two sentences of Paragraph 2 of Respondent's Amended
Affirmative Defense, but rather affirmative states the language of the documents speak for
itself
.
8.
The third paragraph of Respondent's Amended Affirmative Defense is :
3.
The Complainant may reasonably be imputed to have the knowledge of
IEPA employees regarding communications between members of the
3
public and IEPA employees relating to matters regulated by the IEPA
.
[Cite omitted] .
Reply
The third paragraph is a legal conclusion . No reply is required
.
Complainant neither admits or denies whether construction of Highlands' farm began in
the fall of 1997
. Complainant affirmative states that reports documenting Illinois EPA
inspections conducted during construction of the Highlands Farm, indicate construction was
underway on August 26, 1997, October 16, 1997 and April 23, 1998
. Said reports are attached
to the affidavit of James Kammueller, as Exhibits 3, 4 and 5 respectively, filed in support of
Complainant's Motion to Strike this affirmative defense
. Complainant neither admits or denies
that Highland's farm was constructed in the same location and with the same operations as
described by Doug Lenhart and Jim Baird in the referenced phone conversations in that it is
unclear as to which location and operation is the subject of this statement
.
10.
The fifth paragraph of Respondent's Amended Affirmative Defense is
:
5 .
Complainant did not conduct an inspection of Highlands' farm until April
23, 1998, after the farm was fully constructed and operational
.
Reply
Complainant denies paragraph 5
.
11 .
The sixth paragraph of Respondent's Amended Affirmative Defense is
:
6 .
The Act provides that the IEPA "shall have the duty to collect and
disseminate such information
. . .
as may be required to carry out the
purposes of this Act
." 415 ILCS 5/4(b) .
4
9.
The fourth paragraph of Respondent's Amended Affirmative Defense is
:
4.
Construction of Highlands' farm began in the fall of 1997
. Highlands'
Reply
farm was constructed in the same location and with the same operations
as was described to the Complainant by Messrs
. Lenhart and Baird .
Reply
Complainant neither admits nor denies the allegations contained in paragraph 6, but
rather affirmatively states that the language of the Act speaks for itself
.
Complainant denies that Complainant did not attempt to contact Highlands or Murphy
before or during construction of the Highlands' farm
. Complainant affirmatively states that the
true nature of the communication is evident in inspection reports and letters sent to the
Respondent, and these documents speak for themselves
.
Paragraph 8 is a legal conclusion
. No reply is required.
14.
The ninth paragraph of Respondent's Amended Affirmative Defense is
:
9
.
Highlands and Murphy had no reasonable way of knowing at the time of
construction that the Complainant believed that the proposed location
and/or operations violated the Act
. Furthermore, Highlands and Murphy
did not have any reason to believe that further investigation of the
compliance status of the farm was necessary
.
Reply
To the extent paragraph 9 consists of legal conclusions, no reply is required
.
Complainant denies paragraph 9
.
15 .
The tenth paragraph of Respondent's Amended Affirmative Defense is
:
10 .
The Complainant could easily have informed Highlands and Murphy
5
13.
The eighth paragraph of Respondent's Amended Affirmative Defense is
:
8.
Highlands and Murphy reasonably relied on the fact that Complainant did
Reply
not object to the proposed location and operations of Highlands' farm in
their belief that the farm was in compliance with the Act
.
12.
The seventh paragraph of Respondent's Amended Affirmative Defense is
:
7 .
The Complainant did not attempt to contact Highlands or Murphy before
Reply
or during the construction of Highlands' farm to inform Highlands or
Murphy that the farm's location or operations would violate the Act
.
before or during construction of the farm that it believed that the
proposed location and operations of the farm would violate the Act
.
Reply
The Complainant neither admits or denies the allegations contained in paragraph 10,
and affirmatively states the Illinois EPA only has the authority granted to it by the General
Assembly pursuant to the Illinois Environmental Protection Act, and the Act does not give the
agency authority to stop someone from doing something prior to the action being a violation of
the Act except in the permitting authority . The siting permit authority for livestock management
facilities does not lie with the Illinois EPA but with the Illinois Department of Agriculture pursuant
to the Illinois Livestock Management Facility Act . As stated in Mr
. Kammueller's letters, "As we
discussed, the Agency does not presently issue construction permits for livestock waste
handling facilities and cannot give formal siting approval for livestock management or waste
handling facilities ." The state would not proceed with any form of common law cause of action
or statutory authority for immediate injunctive relief, in a situation such as this, where there is
yet no actual violation or imminent threat of substantial danger to the environment or public
health because it is yet to be seen if the owners and operators can locate, build and manage
the facility in a manner that will comply with the Act
.
Complainant neither admits nor denies paragraph 11, but rather affirmative states, given
the letters and inspections reply to paragraph 4, stated in paragraph 9 above, that Respondent
had notice and knowledge, well in advance of commencing construction of the facility, that the
6
16 . The eleventh paragraph of Respondent's Amended Affirmative Defense is
:
11
.
Complainant was aware or should have been aware that dissemination of
Reply
this information to Highlands and Murphy would aid in enforcement of the
Act .
Illinois EPA believed that the location and operation of the proposed swine production facilities
must be carefully evaluated due to the potential for odor emissions to result in violations of the
Illinois Environmental Protection Act
17.
The twelfth paragraph of Respondent's Amended Affirmative Defense is :
12.
Had the Complainant acted with due diligence by disseminating this
information prior to or during the construction of Highlands' farm, the
Complainant could have prevented Highlands' and Murphy's alleged
noncompliance with Illinois law, thus preventing the harm alleged to the
environment .
Reply
Complainant denies the allegations contained in paragraph 12, and affirmatively re-
states as this reply the replies provided in paragraphs 15 and 16 above . To the extent that
paragraph 12 consists of legal conclusions, no reply is required .
Complainant neither admits nor denies the allegations contained in paragraph 13 .
Complainant does not have complete knowledge at this time of all verbal undocumented
communications concerning the proposed facility
. Complainant affirmatively states that the
Illinois EPA's letter to James Baird was dated May 20, 1997 in response to Mr
. Baird's May 6,
1997 phone call, and construction was underway at the site at the time of an August 1997
Illinois EPA inspection - a period of 3 months .
19.
The fourteenth paragraph of Respondent's Amended Affirmative Defense is
:
14 .
Even though Complainant had this knowledge and believed that the
proposed location and operations would violate the Act, the Complainant
did not contact Highlands or Murphy to assert its right to inspect the farm
or to initiate inquiries that led to the instant Complaint until April 23, 1998
.
7
18
.
The thirteenth paragraph of Respondent's Amended Affirmative Defense is :
13. Complainant may reasonably be imputed to have knowledge of the
Reply
details of the proposed location and operations fo Highlands' farm
approximately a year before construction of the farm begin .
Therefore, the Complainant did not demonstrate due diligence .
Reply
Complainant denies the allegations contained in the first sentence of paragraph 14, and
affirmatively re-states as this reply the replies provided in paragraphs 15 and 16 above . The
second sentence of paragraph 14 is a legal conclusion
. No reply is required .
Complainant denies the allegations contained in paragraph 15 .
21
.
The sixteenth paragraph of Respondent's Amended Affirmative Defense is :
16.
Highlands and Murphy have suffered, and will suffer, prejudice and injury
as a result of the Complainant's failure to act in a timely manner in that
Highlands and Murphy were not given information that would have
enabled them to achieve compliance earlier . As a result, they are
incurring legal costs and are being pursued for penalties . In addition, if
Highlands and Murphy had known prior to or during the construction of
the farm that the IEPA would later claim that the farm's proposed location
and operations would violate the Act, Highlands could have changed the
location and operations of the farm .
Reply
To the extent that the first sentence of paragraph 16 contains legal conclusions,
Complainant makes no reply . Complainant denies any factual allegations contained in the first
sentence
. Complainant neither admits nor denies whether Respondents are incurring legal
costs . Whether or not either Respondent is incurring legal costs is not within the personal
knowledge of the Complainant . Complainant admits that it seeks penalties in the prayer for
relief for each count of the Second Amended Complaint . Complainant neither admits or denies
whether any set of facts would have caused Highlands to have changed the location and
operations of the farm . Such is not within the personal knowledge of the Complainant and only
8
20 . The fifteenth paragraph of Respondent's Amended Affirmative Defense is :
15. Complainant could easily have informed Highlands and Murphy of the
Reply
violations perceived by the Complainant ; however, Complainant chose to,
expend its resources on other sources and delayed in asserting its rights .
known to Respondent Highlands .
22.
The seventeenth paragraph of Respondent's Amended Affirmative Defense is
:
17.
By the actions and inactions described above, Complainant failed to
exercise due diligence and thereby caused prejudice to Highlands and
Murphy. As a result, it would be inequitable to allow Complainant to
pursue the cause of action alleged in the Second Amended Complaint .
Reply
Complainant denies paragraph 17 . To the extent paragraph 17 contains legal
conclusions, no reply is required .
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
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
9
BY
: JANE
.
. 1"
E
. MCBRIDE
``
C
rJ_
.
C
'i-
Assistant Attorney General
