BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
vs.
Complainant,
)
)
)
)
)
)
PCB
No.
07-70
CLR1<Js
or9c
OCT
72008
ST,r
o
ILLINOIS
OfIutjor1
Controi
J.
B.
TIMMERMANN
FARMS,
LTD.
an
Illinois
Corporation,
Respondent.
)
(Enforcement-Water)
)
)
)
)
NOTICE
OF
FILING
TO:
Andrew
J.
Nicholas,
Assistant
Attorney
General,
State
of
Illinois,
Attorney
General
of
the
State
of
Illinois,
500
South
Second
Street,
Springfield,
Illinois
62706.
PLEASE
TAKE
NOTICE
that
on
this
date
I
mailed
for
fihin,yvith
the
Clerk
of
the
Pollution
Control
Board
of
the
State
of
Illinois,
an
ANSWSR
TO
COMPLAINT
AND
AFFIRMATIVE
DEFENSES,
a
copy
of
which
is
you.
Dated:
f2c
‘z_1S
,2008
James
Richard
Myers
Reg.
No.
06225705
Attorney
for
J.
B.
Timmermann
Farms,
Ltd.
LeFevre
Oldfield
Myers
Apke
&
Payne
Law
Group,
Ltd.
303
S.
Seventh
St.,
P.O.
Box
399
Vandalia,
IL
62471
Telephone:
(618)
283-3034
Fax:
(618)
283-3037
File
#5753/9601
James
Ricard
Ms,
Attorney
for
J.
B.
Timfnel.Inn
Fs,
Ltd.
servedupon
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
LERK
S
OFFICE
PEOPLE
OF
THE STATE
OF
)
ILLINOIS,
)
OCT
172008
)
STATE
OF
ILLINOIS
Complainant,
)
PO1IUto
Control
Board
)
vs.
)
PCBNo.
07-70
)
(Enforcement-Water)
J.
B. TIMMERMAN
FARMS,
LTD.
)
an
Illinois
Corporation,
)
)
Respondent.
)
ANSWER
TO
COMPLAINT
AND
AFFIRMATIVE
DEFENSES
COUNT
I
COMES
NOW
the
Respondent,
J. B.
Timmermann
Farms,
Ltd.,
by
and
through
its
attorney,
James
Richard
Myers
ofLeFevre
Oldfield
Myers
Apke
&
Payne Law
Group,
Ltd.,
and
for its
Answer
to
the allegations
of
Count
I of the
Complaint
filed against
it states:
1.
Respondent
lacks
sufficient
information
as to
the matters
alleged
in Paragraph
1
of
Count
I of
the Complaint,
and
therefore
denies
same.
2.
Respondent
admits
the
allegations
of
Paragraph
2
of Count
I
of the
Complaint.
3.
Respondent
admits
the
allegations
of
Paragraph
3
of Count
I of
the Complaint.
4.
Respondent
admits
the
allegations
of Paragraph
4 of
Count
I of the
Complaint.
5.
Respondent
admits
the
allegations
of
Paragraph
5
of Count
I of
the Complaint.
6.
Respondent
admits
the
allegations
of
Paragraph
6
of Count
I of
the Complaint.
7.
Respondent
admits
the allegations
of Paragraph
7 of
Count
I
of the
Complaint.
8.
Respondent
admits
the
allegations
of
Paragraph
8 of
Count
I
of the
Complaint.
9.
Respondent
admits
the
allegations
of
Paragraph
9
of
Count
I of
the
Complaint.
10.
Respondent
lacks
sufficient
information
as
to
the
matters
alleged
in
Paragraph
10
of
Count
I of
the
Complaint,
and
therefore
denies
same.
11.
Respondent
lacks
sufficient
information
as
to
the
matters
alleged
in
Paragraph
12
of
Count
I of
the
Complaint,
and
therefore
denies
same.
12.
Respondent
admits
the
allegations
of
Paragraph
12 of
Count
I of
the
Complaint.
13.
Respondent
denies
the
allegations
of
Paragraph
13
of
Count
I
of
the
Complaint.
14.
Respondent
lacks
sufficient
information
as
to
the
matters
alleged
in
Paragraph
14
of
Count
I of
the
Complaint,
and
therefore
denies
same.
15.
Respondent
lacks
sufficient
information
as to
the
matters
alleged
in Paragraph
15 of
Count
I
of the
Complaint,
and
therefore
denies
same.
16.
Respondent admits
the
allegations
of Paragraph
16
of Count
I
of
the
Complaint.
17.
Respondent lacks
sufficient
information
as
to the
matters
alleged
in
Paragraph
17
of
Count
I
of
the
Complaint,
and
therefore
denies
same.
18.
Respondent
lacks
sufficient
information
as to
the
matters
alleged
in
Paragraph
18
of
Count
I
of
the
Complaint,
and
therefore
denies
same.
19.
Respondent admits
receiving
a Violation
Notice
from
the
Illinois
EPA.
Respondent
denies all the
remaining
matters
alleged
in Paragraph
19
of Count
I of
the
Complaint.
20.
Respondent
admits
receiving
a
Notice
of
Intent
to
Pursue
Legal
Action
from
the
Illinois
EPA
and
a
meeting
with
the
Illinois
EPA
on
March
2, 2005.
Respondent
denies
all
the
remaining
matters
alleged
in
Paragraph
20
of Count
I of
the
Complaint.
-2-
21.
Respondent admits the allegations
of Paragraph 21
of Count I of the
Complaint.
22.
Respondent lacks sufficient
information as to the
matters alleged in
Paragraph 22
of
Count
I
of the Complaint, and
therefore denies
same.
23.
Respondent lacks sufficient information
as
to
the
matters alleged in
Paragraph
23 of
Count I of
the Complaint,
and therefore
denies same.
24.
Respondent lacks sufficient
information as to
the matters alleged
in Paragraph
24 of
Count I of the
Complaint,
and therefore
denies same.
WHEREFORE, the Respondent,
J. B. Timmermann Farms, Ltd.,
respectfully requests
that the Board enter an Order dismissing
Count I
of
the Complaint
with prejudice
and further
ordering
Complainant to
pay Respondent’s costs and fees.
COUNT II
COMES
NOW the Respondent,
J. B. Timmermann Farms,
Ltd., by and through
its
attorney, James
Richard Myers ofLeFevre
Oldfield Myers Apke & Payne Law
Group, Ltd., and
for its
Answer
to
the
allegations of Count
II of the Complaint filed against it states:
1-22.
Respondent reanswers and incorporates
herein by reference its answers to
Paragraphs
1 to
22 of Count I as its answers to Paragraphs
1 to
22
of Count II of the
Complaint.
23.
Respondent
admits the allegations
of Paragraph 23
of
Count
II of the Complaint.
24.
Respondent admits the
allegations of Paragraph 24
of Count II of the Complaint.
25.
Respondent admits the allegations
of Paragraph 25 of Count II of the Complaint.
26.
Respondent denies the allegations
of Paragraph 26 of Count II
of the Complaint.
-3-
WHEREFORE,
the Respondent,
J. B. Timmermann
Farms,
Ltd.,
respectfully requests
that
the Board
enter
an Order
dismissing
Count
II of
the Complaint
with
prejudice and further
ordering
Complainant
to pay Respondent’s
costs
and fees.
COUNT
III
COMES
NOW the
Respondent,
J.
B.
Timmermann Farms,
Ltd., by and through
its
attorney, James
Richard Myers
ofLeFevre Oldfield
Myers
Apke
&
Payne Law Group,
Ltd.,
and
for its
Answer to the
allegations of Count
III of the Complaint
filed against
it states:
1-22.
Respondent
reanswers and
incorporates herein
by reference
its answers to Paragraphs
1 to
22
of
Count I as
its
answers
to
Paragraphs 1 to
22
of Count
III
of the Complaint.
23.
Respondent
denies the
allegations
of Paragraph
23
of
Count III of the
Complaint.
24.
Respondent
admits
the allegations
of Paragraph
24 of
Count
III
of the Complaint.
25.
Respondent
admits
the
allegations
of
Paragraph
25 of Count III of the
Complaint.
26.
Respondent
denies
the
allegations
of Paragraph
26 of
Count
III of the Complaint.
WHEREFORE,
the Respondent,
J. B.
Timmermann
Farms,
Ltd.,
respectfully
requests
that
the
Board enter an
Order dismissing
Count
III of
the Complaint
with
prejudice
and further
ordering
Complainant
to pay
Respondent’s costs
and
fees.
-4-
AFFIRMATIVE
DEFENSES TO
ALL COUNTS
AFFIRMATIVE DEFENSE
NUMBER 1- ACT
OF GOD
COMES NOW the Respondent,
J. B. Timmermann Farms,
Ltd.,
by
and
through its
attorney, James Richard Myers ofLeFevre
Oldfield Myers Apke
& Payne Law
Group, Ltd., and
for its Affirmative
Defense
Number 1 to all
Counts of the Complaint
filed against it
states:
1.
The lagoon
overflow
referenced in
the Complaint occurred
subsequent
to a
unusually
heavy rainfall.
2.
Rainfall is an act of God,
not within the control of the Respondent.
WHEREFORE, the Respondent,
J. B. Timmermann Farms, Ltd., respectfully
requests
that the Board enter an Order dismissing
the Complaint
with
prejudice and further
ordering
Complainant to pay
Respondent’s
costs and fees.
AFFIRMATIVE DEFENSE NUMBER
2- THIRD PARTY INTERVENTION
COMES
NOW the Respondent,
J. B. Timmermann Farms, Ltd.,
by
and
through its
attorney,
James
Richard Myers ofLeFevre Oldfield
Myers Apke & Payne Law Group, Ltd.,
and
for its
Affirmative Defense Number 2
to all Counts of
the
Complaint filed against it states:
1.
The
lagoon overflow referenced in the Complaint occurred subsequent
to a unusually
heavy rainfall.
2.
Several other landowners in the area
of
Respondent have waste and water
retention
systems
which failed at the same
time
as Respondent’s.
WHEREFORE,
the
Respondent,
J. B. Timmermann Farms, Ltd., respectfully requests
-5-
that
the
Board
enter
an
Order
dismissing
the
Complaint
with
prejudice
and
further
ordering
Complainant
to
pay
Respondent’s
costs
and
fees.
AFFIRMATIVE
DEFENSE
NUMBER
3-
MITIGATION
COMES
NOW
the
Respondent,
J.
B.
Timmermann
Farms,
Ltd.,
by
and
through
its
attorney,
James
Richard
Myers
ofLeFevre
Oldfield Myers
Apke &
Payne Law
Group,
Ltd.,
and
for
its
Affirmative
Defense
Number
3
to
all
Counts
of
the
Complaint
filed
against
it
states:
1.
The
lagoon
overflow
referenced
in
the
Complaint
occurred
subsequent
to
a
unusually
heavy
rainfall.
2.
Respondent
has
acted
with
all
due
attentiveness
and
speed to
rectify the
situation
and
to
prevent
further
overflows
of
its
lagoon
at
its
significant
cost
and
expense.
WHEREFORE,
the
Respondent,
J.
B.
Timmermann
Farms,
Ltd.,
respectfully
requests
that
the
Board
enter
an
Order
dismissing
the
Complaint
with
prejudice
and
further
ordering
Complainant
to
pay
Respondent’s
costs
and
fees.
Dated:
1bP)—
ic
,
2008
J.
B.
1ThIMERMANN
FARMS, LTD.
By:A5T
By:
Jams/Rfar
yers,
its
Attorney
James
Richard
Myers
Reg.
No.
06225705
Attorney
for
J.
B.
Timmermann
Farms,
Ltd.
LeFevre
Oldfield
Myers
Apke
&
Payne
Law
Group,
Ltd.
303
S.
Seventh
St.,
P.O.
Box
399
Vandalia,
IL
62471
Telephone:
(618)
283-3034
Fax:
(618)
283-3037
File
#5753/9601
-6-
CERTIFICATE
OF SERVICE
I
hereby
certif,’ that I
did on October
15, 2008, send by
U.S.
mail, first
class with postage
thereon
fully prepaid,
by
depositing
in a
United Stated Post
Office Box a true and
correct
copy
of the
following
instruments entitled
NOTICE OF
FILING and ANSWER
TO
COMPLAINT
AND
AFFIRMATIVE
DEFENSES
Andrew
J.
Nicholas
Assistant
Attorney
General
State of
Illinois
Attorney
General of the State
of Illinois
500
South Second Street
Springfield,
IL 62706
and the original
and ten copies
of the Notice
of filing by
First
Class Mail
with postage
thereon
fully
prepaid
of the same
foregoing instrument(s):
John T.
Therriault, Assistant
Clerk
Illinois
Pollution
Control Board
James
R. Thompson
Center
100
West Randolph,
Suite 11-500
Chicago,
Illinois 60601
A
copy
of
the Notice
of
Filing was
also sent by First
Class
Mail
with postage
thereon fully
prepaid to:
Carol Webb
Hearing
Officer
Illinois
Pollution
Control
Board
1021
North Grand
Avenue
East
Springfield,
IL
62794
J.
Otto