Lisa
Madigan
AT’lORNEY
GENERAL
OFFICE OF
THE
ATTORNEY
STATE
OF
ILLINOIS
December
22, 2008
GENERAL
ECEnVED
CLERK’S
OFFICE
DEC
24
2008
Pouutio,i
STATE
OF
Control
ILLINOIS
Boaj’d
CLERK’S
OFFICE
STATE
OF
IWNOIS
Pollution
Control
Board
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
Complainant’s
Motion
for
Leave
to
File
a
Reply
Brief,
Complainant’s
Reply
in
Support
of
its Motion
to
Strike
Respondent’s
Affirmative
Defenses
and
Notice
of
Filing
in
regard
to the
above-captioned
matter.
Please
file
the
originals
and
return
file-stamped
copies
to
me
in the
enclosed,
self-addressed
envelope.
Thank
you
for
your
cooperation
and
consideration.
AJN!pjk
Enclosures
Very
truly
yours,
Andrew
J.
Environmental
Bureau
500
South
Second
Street
Springfield, Illinois
62706
(217)
782-9031
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
•
‘l”l’Y:
(800)
964-3013
• Fax:
(312)
814-3806
1 (VII P...-.-
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nfl
FAIr
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
DEC
2
2008
To:
James
Richard
Myers
LeFevre
Oldfield
Myers
Apke
&
Payne
Law
Group,
Ltd.
STATE
OF
iLLItä
303
S.
Seventh St.,
P.O.
Box
399
zo1iutiO!
COflt’
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, COMPLAINANT’S
MOTION FOR
LEAVE TO
FILE
A
REPLY
BRIEF
and
COMPLAINANT’S
REPLY IN
SUPPORT
OF
ITS
MOTION
TO
STRIKE
RESPONDENT’S
AFFIRMATIVE
DEFENSES,
copies
of
which
are
attached
hereto
and
herewith
served
upon
you.
Respectfully
submitted,
PEOPLE
OF
THE
STATE OF ILLINOIS
LISA
MADIGAN,
Attorney
General of the
State
of
Illinois
MATTHEWJ.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:_________
ANDREW(.
NICHOLAS
Assistant
Attorney General
Environmental
Bureau
Attorney
l.D.
#6285057
500
South
Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
December
22,
2008
CERTIFICATE
OF
SERVICE
I hereby
certify
that
I
did
on December
22,
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,
COMPLAINANT’S
MOTION
FOR
LEAVE TO
FILE
A REPLY
BRIEF
and
COMPLAINANT’S
REPLY
IN
SUPPORT
OF ITS
MOTION
TO
STRIKE
RESPONDENT’S
AFFIRMATIVE
DEFENSES
To:
James
Richard
Myers
LeFevre
Oldfield
Myers
Apke
& Payne
Law
Group,
Ltd.
303
S
Seventh St,
P
0
Box
399
Vandalia,
IL
62471
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):
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
Andrew
J. N6holas
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,
)
CLERK’S
OFFICE
Respondent.
DEC
!
L
1
2008
STATE
OF
ILLINOIS
Pollution
Control
Board
COMPLAINANT’S
MOTION
FOR
LEAVE
TO
FILE
A
REPLY
BRIEF
1.
The
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
ex
rel,
LISA
MADIGAN,
Attorney
General
of
the
State
of
Illinois,
hereby
moves
this
Board
for
an
order
pursuant
to
35
Ill,
Adm.
Code
10
1.500
(2005)
seeking
leave to
file
a
reply
in
support
of
its
Motion
to
Strike
Respondent’s
Affirmative
Defenses.
In
support
of
this
Motion
for
Leave
to
File
a
Reply
Brief,
the
Complainant
states
as
follows:
2.
On
January
29,
2007,
the
Complainant
filed
its
Complaint
in
this
matter.
On
October
15,
2007,
the
Respondent
filed
its
Answer
to
the
Complaint
and
included
three (3)
Affirmative
Defenses.
On
October
29,
2008,
the
Complainant
filed
a
Motion
to
Strike
Respondent’s
Affirmative
Defenses.
3.
On
December
1,
2008,
the
Parties
participated
in
a
telephone
status
conference
with
the
Hearing
Officer.
The
Respondent
was
given to
December
15,
2008
to
file
a
response
to
Complainant’s
Motion
and
the
Complainant
was
given
to
December
29,
2008
to
file
a reply.
(See
12/2/08
Board
Order
attached
as
Exhibit A).
4.
On
December
15,
2008,
the
Respondent
filed
its
Response
to
Motion to
Strike
Affirmative
Defenses
(See
Respondent’s
Response attached
as
Exhibit B).
5.
As
per
Section
101.500(e)
of
the
Board’s
Rules
and
Regulations,
35111.
Adm.
Code
10
1.500(e)
(2005),
the Complainant
requests
leave
to file
its
attached
Reply
in
Support
of
its
Motion
to
Strike
Respondent’s
Affirmative
Defenses.
WHEREFORE,
the Complainant,
PEOPLE
OF THE
STATE
OF
ILLINOIS, respectfully
requests
that
the
Board
enter
an
order
granting
the
Complainant
leave
to file
its
Reply
in Support
of
its
Motion
to
Strike
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.
DUNN
Environmental
Enforcement/Asbestos
Litigation
Division
BY:____
ANDREW’I
NICHOLAS
Assistant
Attorney
General
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
217/557-9457
Dated:
December
22,
2008
RECEIVED
CLERK’S
OFFJCE
DEC
1
2008
ILLINOIS POLLUTION
CONTROL
BOARD
STATE
OF
IWNOIS
December
2,
2008
Pollution
Control
Board
PEOPLE OF
THE STATE OF
ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB07-70
)
(Enforcement
- Water)
J.B.
TJMMERMANN
FARMS, LTD.,
an
)
Illinois incorporated
cooperative,
)
)
Respondent.
)
HEARING
OFFICER ORDER
On
December
1,
2008, the parties
participated
in
a telephone status
conference
with
the
hearing
officer.
On
October
29, 2008,
complainant moved
to strike respondent’s
affirmative
defenses.
The
parties
agree
that
respondent’s
response to this
motion is due by
December 15,
2008, and complainant’s
reply
is due by December
29, 2008.
The
parties
are
directed
to participate in a telephone
status
conference with the hearing
officer
at
10:00 a.m.
on
February 2,
2009. The status conference
shall be
initiated
by
the
complainant.
IT IS SO
ORDERED.
Carol
Webb
Hearing
Officer
Illinois
Pollution Control
Board
1021 North Grand Avenue
East
P.O.
Box
19274
Springfield, Illinois 62794-9274
217/524-8509
webbc@ipcb.state.il.us
EXI-UBIT
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE
STATE
OF
)
ILLiNOIS,
)
)
Complainant,
)
)
vs.
)
PCBNo. 07-70
)
(Enforcement-Water)
J.
B. TIMMERMANN
FARMS,
LTD.
)
an
Illinois Corporation,
)
Respondent.
)
RESPONSE TO MOTION TO STRIKE
AFFIRMATIVE
DEFENSES
COMES NOW
the Respondent,
J. B.
Timrnermann 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
by law.
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
JLCS
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
Jll.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.
WHEREFORE,
the
Respondent,
I. B.
Tirnmermann
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:
O-5_
6,
2008
J.B.
By
James
Richard
Myers
Reg.
No.
06225705
Attorney
for
J. B.
Timmermann
Farms,
Ltd.
LeFevre
OIdfie(d
Myers
Apke
& Payne
Law
Group,
Ltd.
303
S.
Seventh
St.,
P.O. Box
399
Vandatia,
IL 62471
Telephone:
(618)
283-3034
Fax:
(618) 283-3037
FiIe#5753/9601
-3-
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,
)
CL.
Respondent.
)
DEC
std
COMPLAINANT’S
REPLY
IN
SUPPORfPITS
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
replies
in
support
of
its
Motion
to
Strike
Respondent’s
Affirmative
Defenses.
In
support
of
this
Reply,
the
Complainant
states as
follows:
I.
INTRODUCTION
On
October
15,
2008,
the
Respondent
raised the
following
Affirmative
Defenses
in
its
Answer
to
Complainant’s
Complaint:
1)
Act
of
God
-
The
lagoon
overflow
referenced
in
the
Complaint
6ccurred
subsequent
to
a
unusually
heavy
rainfall.
Rainfall
is
an
act
of
God,
not
within
the
control
of
the
Respondent.
2)
Third-Party
Interveiltion
-
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.
The
Respondent’s
Affirmative
Defenses
are
both
factually
and
legally
insufficient
and,
therefore,
should
be
stricken.
II. ARGUMENT
A.
Respondent’s
Affirmative
Defenses
are
Factually
Insufficient
The
Respondent
does
not
plead
sufficient
facts to
support
its
Affirmative
Defenses.
Facts
establishing
an
affirmative
defense
must be
pled
specifically,
in
the same
manner
as
facts
in
a
complaint.
Int’l Ins.
Co.
v.
Sargent
&
Luhdy,
242
Iii.
App.
3d
614,
609
N.E.2d
842,
853
(1St
Dist.
1993).
In
mt
‘1
Ins.
Co.,
an
insurer
sued its
insured
for
rescission
of
a
policy
and
restitution
for
money
paid.
Int’l
Ins. Co.,
609
N.E.2d
at
844-845.
The defendant
included
ten
affirmative
defenses
in
its
answer.
While
the
appellate
court
later
allowed
nine
of
the
ten
defenses
to
stand,
it
held
that
facts
establishing
an
affirmative
defense
must
be
pleaded
with the
same
degree
of
specificity
required
by
a
plaintiff
to
establish
a
cause
of
action.
Id.
at
853.
The
court
did,
however, dismiss
the
defendant’s
affirmative
defense
of
“unclean
hands.”
It
reasoned
that
the
defendant
merely
alleged
plaintiffs
conduct
was
unconscionable
and
tainted with
bad
faith. Id.
at
856.
It
found
this
affirmative
defense
to
be
totally
conclusory
in
nature
and
did
not
include
any
specific
facts
to
support
its
conclusion.
Id.
In
this
case,
the
Respondent
admits
that
its
Affirmative
Defenses
are
lacking
in
detail.
(See
Resp’t[s]
Resp.
to
Mot.
to
Strike,
¶
2,
attached
as
Exhibit
A).
It
argues,
however,
that
these
are
issues
for
discovery.
The
law
in
Illinois
is
clear;
facts
included
in
pleadings
must
be
specific.
As
in
the
affirmative
defense
of
unclean
hands
in
Int’l
Ins.
Co.,
the
Respondent’s
Affirmative
Defenses
do
not
include
sufficient
facts.
Furthermore,
the
Respondent
does
not
need
2
discovery
to
provide
the
necessary
details.
For
example,
rather
than
concluding
there
was
an
Act
of
God, e.g.,
heavy
rainfall,
Affirmative
Defense
#1
could
easily be
supported
with
information
such
as;
when it
rained,
how
long
it rained
or
how
much
rainfall
was
received.
Rather
than
concluding
that
the
neighbors
also
experienced
system
overflows,
Affirmative
Defense
#2
could
easily
be
supported
with
more
specific
facts
to
show
how many
neighbors
were
affected
and
where they
are
located
in
relation
to
the
Respondent’s
property.
Rather
than concluding
that
the
Respondent
has
made
repairs
to
its
property,
Affirmative
Defense
#3
could
easily
be
supported
with
information
that
shows
what
work
was
done,
or
where
and
when
it
was
done.
This
is
information
that
is
available
only
to
the
Respondent.
Therefore,
Respondent’s
Affirmative
Defenses
are
totally
conclusory
in
nature and
devoid
of
specific
facts
to
support
their
conclusions.
B.
Respondent’s
Affirmative
Defenses
are
Legally
Insufficient
Respondent’s
Affirmative
Defenses
are
legally
insufficient.
A
proper
affirmative
defense
admits
the
legal
sufficiency
of
a
cause.
of
action
but
then asserts
new
matter
which
is
capable
of
defeating
a
plaintiff’s
right
to
recover.
Vroegh
v.
J&
MForklift,
165
IIl.2d
523,
651
N.E.2d
121,
125-126
(1995).
See
also
Pryweller
v.
Cohen,
282
Iii.
App.
3d
899,
668
N.E.2d
1144
(1St
Dist.
1996)
(affirmative
defenses
must
offer
facts
which are
capable
of
negating
the
alleged
cause
of
action).
In
this
case,
the
Respondent
argues
that
its
Affirmative
Defenses
are
legally
relevant.
(See
Resp’t[s]
Resp.
to
Mot.
to
Strike,
¶
2,
attached
as
Exhibit
A).
Relevancy
is
an
evidentiary
standard
used
at
trial.
In
re
Stephen
K,
373
Ill.
App.
3d
7,
867
N.E.2d
81,
101
(1St
Dist.
2007).
Respondent’s
Affirmative
Defenses
will
be
evaluated
on
whether
they
are
capable
of
defeating
Complainant’s
claims,
not
on
whether
they are
admissible
at
trial. Respondent’s
Affirmative
Defenses
do
not meet
this
standard
for
the
following
reasons:
First,
in
Illinois,
the
‘Act
of
God”
defense
is
not
a
defense
against
water
pollution
claims
brought
under
Section
12
of
the
Illinois
Environmental
Protection
Act (“Act”),
415
ILCS 5/12
(2006).
See
Perkinson
v.
Illinois
Pollution
Control
Board,
187
Ill.
App.
3d
689,
543
N.E.2d
901,
904
(3rd
Dist.
1989),
citing
Freeman
Coal Mining
Corp. v.
Illinois
Pollution
Control
Board
(5th
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
that
there
was
an
unusually
heavy
rainfall
does
not
provide
new
facts
capable
of
defeating
this
cause
of
action.
Second,
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
the
Respondent’s
neighbors
contributed
to
the
discharge..
The
legal
issue
is
whether
the
Respondent
caused
or
allowed
the
discharge.
Asserting
there
was
discharge
from
the
Respondent’s
neighbors
does
not
offer
new
information
that
is
capable
of
defeating
the
Complaint.
Finally,
Section
33(a)
of
the
Act,
states:
“It
shall
not
be
a
defense
to
findings
of
violations
of
the
provisions
of
the
Act
or
Board
regulations....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
rectify
the
situation
is
not
a
defense
to
liability.
In
its
Response,
Respondent
correctly
notes
that
a
number
of
factors
may
be
considered
by
the
Court
when
making
a
penalty
determination,
however,
Complainant’s
Motion
only
attacks
the
sufficiency
of
Respondent’s
4
Affirmative
Defenses,
it
does
not
raise the
issue
of
penalty.
Therefore,
Respondent’s
Affirmative
Defenses
are
legally
insufficient.
III.
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
JLCS
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.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
ANDREW
J.
NICHOLAS
Assistant
Attorney
General
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
2
17/557-9457
Dated:
5
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.
)
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.
WHEREFORE,
the
Respondent,
J.
B.
Timmermann
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:
6,
2008
J.B.
By:
James
Richard
Myers
Reg.
No. 06225705
Attorney
for
J. B.
Timmermann
Farms,
Ltd.
LeFevre
Odfleid
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
LTD.
