OCT29
2008
?ofIut!on
STATE
OF
Contro
(LUNOIS
Board
OFFICE
OF
THE
ATTORNEY
GENERAL
STATE
OF
ILLINOIS
Lisa
Madigan
ATTORNEY
GENERAL
October
27,
2008
John
T. Therriault,
Assistant Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100
West
Randolph
Chicago, Illinois
60601
Re:
People
v.
J. B
Timmerman
Farms,
Ltd.
PCB
07-70
Dear
Mr.
Therriault:
Enclosed
for
filing
please
find
the original
and
ten
copies
of
a
Motion
to
Strike
Respondent’s
Affirmative Defenses
and
Notice
of
Filing
in
regard
to the
above-captioned
matter.
Please
file
the
original
and
return
a
file-stamped
copy
to
me
in
the enclosed,
self-addressed
envelope.
Thank
you
for
your
cooperation
and
consideration.
Very
truly
yours,
Andrew
J.
Ni
olas
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
AJN/pjk
Enclosures
500 South
Second
Street,
Springfield,
Illinois
62706
• (217)
782-1090
• TTY:
(877)
844-5461
• Fax:
(217) 782-7046
100 West
Randolph
Street,
Chicago,
Illinois
60601
• (312)
814-3000
•
TTY:
(800)
964-3013
• Fax:
(312)
814-3806
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-
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
:PEOPLE OF THE STATE OF
)
ILLINOIS,
)
)
Complainant,
)
vs.
)
PCB
No. 07-70
)
(Enforcement - Water)
J. B. TIMMERMANN
FARMS,
LTD.,
)
an Illinois corporation,
)
Respondent.
)
NOTICE
OF
FILING
CLERK’S
OFFICE
To:
James Richard Myers
OCT
292008
303
LeFevre
S.
Seventh
Oldfield
St.,Myers
P.O.
Apke
Box
&
399
Payne Law Group, Ltd.
‘ol!utkr
STATE
OF
Control
LUNOIS
Board
Vandalia, IL 62471
PLEASE
TAKE NOTICE that
on this date I
mailed
for filing
with
the Clerk of the
Pollution
Control Board of the
State of Illinois,
a
MOTION
TO STRIKE RESPONDENT’S
AFFIRMATIVE
DEFENSES, a copy
of which is attached hereto
and
herewith
served
upon you.
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:___
ANDREW
J. NICHOLAS
Assistant Attorney
General
Environmental Bureau
Attorney
l.D. #6285057
500
South Second
Street
Springfield, Illinois
62706
217/782-9031
Dated: October
27, 2008
CERTIFICATE
OF
SERVICE
I hereby
certify
that
I did
on October
27,
2008,
send
by U.S.
mail,
first class
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
MOTION
TO
STRIKE
RESPONDENT’S
AFFIRMATIVE
DEFENSES
To:
James
Richard
Myers
LeFèvre
Oldfield
Myers
Apke
&
Payne
Law Group,
Ltd.
303
S.
Seventh
St.,
P.O.
Box
399
Vandalia,
IL 62471
and
the
oñginal
and
ten copies
of the
Notice
of Filing
by First
Class
Mail
with
postage
thereon
fully
prepaid
of the
same
foregoing
instrument(s):
To:
John
T.
Therriault,
Assistant
Clerk
Illinois
Pollution
Control
Board
James
R. Thompson
Center
Suite
11-500
100
West
Randolph
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
AndrewJ.
Nichlas
Assistant
Attorney
General
This
filing
is
submitted
on
recycled
paper.
BEFORE THE ILLINOIS
POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE
)
OF
ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB No. 07-70
)
(Enforcement
- Water)
J. B.
TIMMERMANN FARMS, LTD.
)
an
Illinois corporation,
)
Respondent.
)
OCT
29 2008
STATE
OF
ILUNOS
PoHutiCW
Control
Board
MOTION
TO STRIKE RESPONDENT’S
AFFIRMATIVE DEFENSES
The PEOPLE
OF
THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN, Attorney
General of the State
of Illinois,
hereby moves this Court for an order pursuant
to 735 ILCS
5/2-6 15
(2006) striking the Affirmative Defenses raised
by
the Respondent,
J.
B.
TIMMERMANN FARMS, LTD. In support
of
this Motion to Strike Respondent’s
Affirmative
Defenses,
the Complainant states as follows:
I. INTRODUCTION
On January 29, 2007, the Complainant filed its Complaint alleging violations
of the
Illinois
Environmental Protection Act, (“Act”), 415 ILCS 5/1 et
seq.
(2006)
and
Illinois
Pollution
Control
Board Regulations, 35 Ill. Adm. Code 101.100
et
seq. (2005).
The
Complainant
alleges
the
Respondent
violated Section 12 of the Act
by
causing
or
allowing livestock
waste to
discharge
into waters
of the
State. Further, it is alleged the Respondent failed to maintain
its
livestock
waste-handling facilities
at levels such that there was adequate storage capacity
to
withstand
a
25-year, 24-hour
storm as
required
by Board regulations. On October 15, 2008,
the
Respondent
filed
its
Answer
to
the
Complaint.
The
Answer
included
the
following
the
Affirmative Defenses:
1)
Act
of
God
-
The
lagoon
overflow
referenced
in
the Complaint
occurred
subsequent
to
a unusually
heavy
rainfall.
Rainfall
is an
act
of God,
not
within
the
control
of
the Respondent.
2)
Third-Party
Intervention
- The
lagoon
overflow
referenced
in
the
Complaint
occurred
subsequent
to
a
unusually
heavy
rainfall.
Several
other
landowners
in
the
area
of Respondent
have
waste
and water
retention
systems
which
failed
at
the
same
time
as
Respondent’s.
3)
Mitigation
-
The
lagoon
overflow
referenced
in the
Complaint
occurred
subsequent
to a
unusually
heavy
rainfall.
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.
II.
LEGAL
STANDARDS
Section
2-615(a)
of
the
Illinois
Code
of Civil
Procedure,
735
ILCS
5/2-615(a)
(2007)
provides, in pertinent
part,
as
follows:
(a)
All objections
to
pleadings
shall
be raised
by
motion.
The
motion
shall
point
out
specifically
the
defects
complained
of,
and
shall
ask for
appropriate
relief,
such
as:
that
a
pleading
or a portion thereof
be
stricken
because
substantially
insufficient
in
law...
Section
2-613(d)
of the
Illinois
Code
of
Civil
Procedure,
735
ILCS
5/2-613(d)
(2007),
sets
forth
requirements for
properly
pleading
affirmative
defenses.
Section
2-613(d)
provides,
in
relevant
part,
as
follows:
(d)
The
facts
constituting
any
affirmative
defense..
.must
be
plainly
set forth
in
the
answer
or
reply.
An
affirmative
defense
essentially
admits
the
allegations
in the
complaint,
and
then
asserts
new
matter
which
defeats
a
plaintiffs
right
to
recover.
Vroegh
v.
J &
M
Forklift,
165
IlI.2d
523,
651
N.E.2d
121,
126 (1995).
An
affirmative
defense
must
do more
than
offer
evidence
to
refute
properly pleaded
facts in
a
complaint.
Pryweller
v. Cohen,
282 Ill.App.3d
899,
668
N.E.2d 1144, 1149
(1st Dist. 1996),
appeal denied,
169 Ill.2d
588 (1996).
Rather,
an
affirmative
defense
must offer
facts
which are
capable of negating
the alleged cause
of
action.
Id. Moreover,
facts
establishing
an
affirmative
defense
must be pled specifically,
in the
same
manner
as facts in a complaint.
International
Ins.
Co. v.
Sargent
& Lundy, 242 I11.App.3d
614,
609
N.E.2d 842,
853 (1st Dist.
1993).
III.
ARGUMENT
A.
Respondent’s
Affirmative
Defenses
are
Factually Insufficient
Affirmative
Defense #
1 - Act of
God
Affirmative
Defense
# 1 does not provide
any new facts
that defeat the
Complainant’s
right
to recover. It fails
to provide any
facts that could form
a sufficient
basis for an affirmative
defense.
Respondent
merely
states
that there was an “unusually
heavy rainfall.”
It does
not
plead
when
it
rained,
how long it rained
or how much
rainfall was received.
Therefore
Affirmative
Defense # 1 is factually
insufficient
and should be stricken.
Affirmative
Defense
# 2 - Third
Party
Intervention
Affirmative
Defense
# 2 does not offer
any
new
facts
that defeat the Complainant’s
right
to
recover.
The Respondent
claims
that neighbors
in the
area also experienced
livestock
waste
overflows,
however,
it does not
provide specific factual
support
for
this
defense. For
example, the
Respondent
does
not
plead who specifically
experienced
overflows or how
those
overflows
defeat
Complainant’s
claims against the
Respondent.
In addition, the Respondent
does
not provide
when these other
overflows
occurred
or how
much overflow contributed
to
the
total
discharge to the
waters
of the State.
The Respondent
merely states several
other
landowners
experienced
overflows
at
the
same
time.
This
is
simply
an
attempt
by
the
Respondent
to
divert
causation.
Therefore,
Affirmative
Defense
#
2
is
factually
insufficient
and
should
be
stricken.
Affirmative
Defense
#
3
-
Mitigation
Affirmative
Defense
#
3
does
not
offer
any
new
facts
that
defeat
the
Complainant’s
right
to
recover.
Merely
stating
that
it
has
acted
with
attentiveness
and
speed
to
rectif’
the
situation
to
prevent
further
overflows
does
not
meet
the
standard
for
a
well-pleaded
affirmative
defense.
The
Respondent
does
not
plead
what
work
was
done
or
where
it
was
done.
Furthermore,
the
Respondent
does
not
provide
information
regarding
how
its
subsequent
work
mayhave
improved
its
livestock
waste
system
or
its
ability
to
divert
storm
water
and/or
livestock
waste.
Therefore,
Affirmative
Defense
#
3
is
factually
insufficient
and
should
be
stricken.
B.
Respondent’s
Affirmative
Defenses
are
Legally
Insufficient
Affirmative
Defense
#
1
-
Act
of
God
Affirmative
Defense
#
1
lacks
the
legal
sufficiency
to
be
proper.
A
simple
factual
denial
of
a
fact
pleaded
in
the
Complaint
is
not
a
sufficient
affirmative
defense.
Pryweller,
668
N.E.2d
at
1149.
Affirmative
Defense
#
1
attempts
to
refute
the
facts
as
pleaded
in
the
Complaint
by
merely
asserting
that
an
Act
of
God,
namely
“unusually
heavy
rainfall,”
was
the
cause
of
the
violations.
This
assertion
falls
well
short
of
constituting
a
legally
sufficient
affirmative
defense.
In
Illinois,
the
“Act
of
God”
defense
is
not
a
defense
against
water
pollution
claims
brought
under
Section
12
of
the
Act,
415
ILCS
5/12
(2006).
See
Perkinson
v.
Illinois
Pollution
Control
Board,
187
Ill.
App.
3d
689,
543
N.E.2d
901,
904
(3
Dist.
1989)
citing
Freeman
Coal
Mining
Corp.
V.
Illinois
Pollution
Control
Board
(5t1
Dist.
1974).
The
Freemam
Court
ruled,
it
was
no
defense
that
the
discharges
were
accidental
or
unintentional
or
that
they
were
the
result
of
an
“Act
of
God”
beyond
the
Defendant’s
control.
The
fact
the
pollution
came
from
the
owner’s
land
was
sufficient
proof
that
the
owner
allowed
the
discharge
within
the
meaning
of
the
Act.
Here,the
Parties
do
not
dispute
that
the
discharge
came
from
the
Respondent’s
land.
The
fact
that
it
rained
does
not
release
the
Respondent
from
liability.
Furthermore,
the
law
requires
the
Respondent
to
maintain
its
facility
such
that
it
can
handle
storm
water
run-off
and
avert
livestock
waste
overflows.
Section
50
1.403(a)
of
the
Board’s
Water
Pollution
Regulations,
requires
the
Respondent
to
have
adequate
diversion
dikes,
walls
or
curbs
to
handle
storm
water.
35
Ill.
Adm.
Code
501.403(a)
(2005).
Section
501
.404(c)(3)
requires
the
Respondent
to
maintain
adequate
storage
capacity
in
its
waste-
handling
facilities
so
that
an
overflow
does
not
occur
except
in
cases
of
precipitation
in
excess
of
a
25-year,
24-hour
storm.
35
III.
Adm.
Code
501.404(c)(3)
(2005).
The
storm
that
precipitated
the
Respondent’s
discharge
was
not
a
25-year,
24-hour
storm
event.
The
Complainant
alleges
the
Respondent
does
not
have
adequate
storm
water
diversion
capability
or
adequate
storage
capacity
in
its
waste-handling
facilities.
The
rainfall
caused
discharge
of
contaminants
at
the
Respondent’s
property
in
violation
of
the
law.
To
constitute
a
proper
affirmative
defense,
an
allegation
must
be
capable
of
defeating
the
claims
in
the
complaint.
Since
the
law
holds
that
an
“Act
of
God”
denial
of
causation
is
an
insufficient
defense
to
liability
for
water
pollution
violations,
and
the
Respondent’s
water
diversion
and
waste-storage
facilities
are
inadequate,
AffirmativeDefense
#
1
should
be
stricken
as
legally
insufficient.
Affirmative
Defense
#
2
-
Third
Party
Intervention
This
affirmative
defense
has
no
legal
basis
and
should
be
stricken.
Section
12(a)
of
the
Act
provides
that
no
person
shall
cause
or
allow
water
pollution
either
alone
or
in
combination
with
matter
from
other
sources.
415
ILCS
5/12(a)
(2006).
It
does
not
matter
whether
other
waste
and water retention
systems in
the
Respondent’s
neighborhood
failed, what
matters is
that
the Respondent’s
system failed.
A
discharge
from
the
Respondent’s
neighbor
does not
alleviate
the Respondent
of its legal
obligations.
Therefore,
Affirmative
Defense
# 2 should
be stricken
as
legally insufficient.
Affirmative
Defense #
3
- Mitigation
Here, the Respondent
raises
the
defense
that it has taken
steps to reach compliance
subsequent
to
the violation.
This is
a
legally
insufficient defense
and must
be stricken.
Section
33(a)
of the Act, provides:
“It
shall
not be a
defense
to findings of violations
of the
provisions
of
the Act or
Board regulations or
a bar to the assessment
of
civil
penalties that the
person
has come
into
compliance subsequent
to the violation.”
415 ILCS
5/33(a) (2006). The
fact that the
Respondent claims
it has worked to
rectifr
the situation
is of no legal
consequence.
Therefore,
Affirmative
Defense #
3
is legally
insufficient
and should be stricken.
IV. CONCLUSION
The Respondent’s
Affirmative
Defenses
are
both factually and
legally insufficient.
Therefore,
they should
be stricken
pursuant to Section
2-615
of the
Illinois
Code of Civil
Procedure, 735
ILCS 5/2-615 (2007).
WHEREFORE, the Complainant,
PEOPLE
OF THE STATE OF ILLiNOIS, respectfully
requests that
the Board enter an order striking the Respondent’s Affirmative Defenses and
granting
any other
relief it deems appropriate.
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS
ex rel. LISA MADIGAN Attorney General
of the
State of
Illinois
MATTHEW
J. DU]NII’1, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:_____________
ANDREW J”NICHOLAS
Assistant Attorney
General
Environmental Bureau
500 South
Second
Street
Springfield,
Illinois 62706
217/557-9457
Dated:
October 27,
2008
