BEFORE

THE

ILL1NOIS

POLLUTION

CONTROL

BOARL

CE

uEC

72008

PEOPLE

OF

THE

STATE

OF

)

OF

ILLjN

ILLINOIS,

)

?Ollution

Controi

Bd

Complainant,

)

)

vs.

)

PCB

No.

07-70

)

(Enforcement-Water)

J.

B.

TIMMERMANN

FARMS,

LTD.

)

an

Illinois

Corporation,

)

)

Respondent.

-

)

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

filing

with

the

Clerk

of

the

Pollution

Control

Board

of

the

State

of

Illinois,

an

Response

-Mot

ur-t

Dismiss,

a

copy

of

which

is

attached

hereto

and

herewith

served

upon

yo/

Dated:

2008

James

ffrd

M

rs,

Attori’

for

B.

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)

283-2871

File

#5753/960

1

---

CLERkIS

OD

BEFORE THE ILLINOIS

POLLUTION CONTROL

BOARD

1JEC

SThTEOL

PEOPLE OF THE STATE OF

)

oi1uj

0

NO,

8

ILLINOIS,

)

°8

°arcJ

)

Complainant,

)

)

vs.

)

PCBNo.

07-70

)

(Enforcement-Water)

J. B.

TIMMERMAISJN

FARMS,

LTD.

)

an Illinois Corporation,

)

)

Respondent.

)

RESPONSE

TO MOTION TO STRIKE AFFIRMATIVE

DEFENSES

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 Response to

the Motion to Strike

Respondent’s Affirmative Defenses states:

1.

The

Motion alleges

that the Affirmative Defenses should

be stricken as being

both

factually and

legally

deficient.

2.

The allegations in the Affirmative Defenses are not

factually deficient. The detail

lacking

in

the allegations are issues

for

discovery,

not pleading. The

pleadings serve

to

advise the parties of the factual

basis for the

defenses,

which is all that is required

bylaw.

3.

The

affirmative

defenses are legally relevant. The

Complaint filed in this matter seeks

not

only a finding of a violation of the Illinois Environmental

Protection Act, but also

the

assessment of a civil penalty.

In determining the appropriate civil penalty

to be

imposed,

the trial court is authorized,

but

not limited,

by section

42(h)

of the Act to

---

consider

the

following

factors:

(1)

the

duration

and

gravity

of

the

violation;

(2)

the

presence

or

absence

of due

diligence

on

the part

of

the

violator

in

attempting

to comply

with

requirements

of this

Act

and regulations

thereunder

or to

secure

relief

therefrom

as

provided

by

this

Act;

(3)

any

economic

benefits

accrued

by

the

violator

because

of

delay

in

compliance

with

requirements;

(4)

the

amount

of monetary

penalty

which

will

serve to

deter

further

violations

by

the

violator

and

to

otherwise

aid

in enhancing

voluntary

compliance

with

this

Act

by

the

violator

and other

persons

similarly

subject

to the

Act; and

(5) the

number,

proximity

in time,

and

gravity

of

previously

adjudicated

violations

of

this Act

by

the violator.

415 ILCS

5/42(h)

(West

1994).

In addition,

the court

can

consider

any

other

factor it

chooses

as

this

list

is not

exclusive.

See

People

ex

rel.

Ryan

v.

McHenry

Shores

Water

Co.,

295 Ill.App.3d

628,

693

N.E.2d

393

(2d

Dist.

1998).

4.

The

affirmative

defenses

plead

are

relevant

and

material

to

the

issue

of the

possible

imposition

of

a

penalty

in

this

case.

WHERLFOPLE,

the

Respondent,

J. B.

Timrnermann

Farms,

Ltd.,

respectfully

requests

that the

Board

enter

an

Order

denying

the Motion

to

Strike

and

requiring

that

a reply

be

filed

within

a short

date certain.

-2-

---

Dated:

5_6,2OO8

J.B.

By:

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

-3-

---

CERTIFICATE OF SERVICE

I hereby

certifi that I

did on December

15, 2008, send by U.S.

mail, first class with

postage

thereon filly prepaid, by depositing in

a United Stated Post Office Box

a true and

correct

copy of the following instruments entitled

NOTICE

OF

FILING and

RESPONSE TO

MOTION TO DISMISS

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 1 1-500

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

Otto