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BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V .
CSX TRANSPORTATION, INC.,
a Virginia corporation,
Respondent
.
To
:
Kristen Laughridge
Assistant Attorney General
Environmental Bureau
Illinois Attorney General's Office
500 South Second Street
Springfield, IL 62706
Carol Webb, Hearing Officer
Dorothy M. Gunn
Illinois Pollution Control Board
Illinois Pollution Control Board
1021 North Grand Avenue East
James R. Thompson Center
Post Office Box 19274
100 West Randolph Street, Suite 11-500
Springfield, IL 62794-9274
Chicago, IL 60601
PLEASE TAKE NOTICE that today I have filed with the Office of the
Clerk of the Pollution Control Board the RESPONDENT'S RESPONSE TO MOTION
TO STRIKE and AMENDED ANSWER and AFFIRMATIVE DEFENSES of CSX
Transportation, Inc. in the above titled matter. A copy is hereby served upon you.
PCB 06-51
(Enforcement - Air, Water, Land)
NOTICE OF FILING
avid L. Riese
One of its Attorneys
DATED :
January 19, 2006
MCGUIREWOODS LLP
77 West Wacker Drive, Suite 4100
Chicago, Illinois 60601
(312) 849-8100
RECEIVED
CLERK'S OFFICE
JAN 1 9 2006
STATE OF ILLINOIS
Pollution Control Board
 
RECEIVED
CLERKS
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
JAN 1 0 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
OF ILLINOIS
Pollution Control Board
Complainant,
)
v .
)
PCB 06-51
(Enforcement -Air, Water, Land)
CSX TRANSPORTATION, INC .,
)
a Virginia corporation,
)
Respondent
.
RESPONSE TO MOTION TO STRIKE
CSX Transportation, Inc. ("CSXT") by and through its counsel McGuireWoods LLP,
files this response to the Plaintiffs motion to strike and states in support as follows
.
CSXT does not agree that its Affirmative Defenses were legally insufficient in that they
gave Plaintiff sufficient notice of the issues which would be raised in defending this complaint . In
the interest of resolving this matter more expeditiously and preserving state resources, however,
CSXT files the attached Amended Answer and Affirmative Defenses which provide additional
factual and legal bases in support of the Affirmative Defenses . In light of this amended pleading,
Plaintiffs motion should be dismissed with leave to refile should Plaintiff object to these
Amended Affirmative Defenses
.
Wherefore for the reasons stated herein, CSXT respectfully requests the Board to dismiss
Plaintiffs Motion to Strike .
Dated: January 19, 2006
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Telephone : 312/849-8100
Respectfully submitted,
Davi
ieser
One of its Attorneys
3494006
 
RECEIVED
BEFORE THE
JAN 1 9 2006
ILLINOIS POLLUTION CONTROL BOARD
STATE
ILLINOIS
Bod
Pollution
oa
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v .
)
PCB 06-51
(Enforcement - Air, Water, Land)
CSX TRANSPORTATION, INC.,
)
a Virginia corporation,
)
Respondent
.
AMENDED A N S W E R and
AFFIRMATIVE DEFENSES
NOW COMES Respondent, CSX Transportation, Inc . ("CSXT"), by and through
its attorneys, McGuireWoods LLP, and for its Amended Answer and Affirmative
Defenses states and alleges as follows .
COUNTI
1
.
This allegation states a legal conclusion and no further answer is required
.
2 .
This allegation states a legal conclusion and no further answer is required
.
3
.
This allegation states a legal conclusion and no further answer is required
.
4 .
CSXT admits that it is a Virginia corporation but denies all other allegations
stated herein .
5 .
CSXT admits that a derailment occurred on December 22, 2005 near Paris,
Illinois, but denies the remaining allegations of Paragraph 5
.
6
.
CSXT admits the allegations of Paragraph 6 .
7 .
CSXT denies the allegations of Paragraph 7 but states that approximately 5,600
gallons of diesel fuel was released from the engines
.
8
.
CSXT admits the allegations of Paragraph 8
.
9
.
CSXT admits the allegations of Paragraph 9
.
 
10 .
CSXT does not admit or deny the allegations of Paragraph 10 but demands strict
proof thereof.
11
.
CSXT denies the allegations of Paragraph 11 but states that HCI was released to
the field adjacent to the tracks .
12
.
CSXT denies the allegations of Paragraph 12, but states that the City of Paris and
the Illinois EPA ordered precautionary evacuations in the surrounding area .
13
.
CSXT denies the allegations of Paragraph 13 but states that HCl is considered
corrosive
.
14 .
This allegation states a legal conclusion and no further answer is required
.
15 .
This allegation states a legal conclusion and no further answer is required
.
16 .
CSXT denies the allegations of Paragraph 16
.
Wherefore, CSXT respectfully requests the Board to deny all relief requested by
the Complainant .
COUNTII
1 - 14. CSX restates and incorporates by references its answers to Paragraphs I
- 14 of
Count I as Paragraphs 1 - 14 of this Count II as though fully stated herein .
15 .
This allegation states a legal conclusion and no answer is required
.
16
.
This allegation states a legal conclusion and no answer is required
.
17
.
CSX denies the allegations of Paragraph 17
.
18
.
CSX denies the allegations of Paragraph 18 .
19 .
CSX denies the allegations of Paragraph 19 .
Wherefore, CSX respectfully requests the Board to deny all relief requested by
the Complainant.
 
COUNTIII
1 - 14. CSX restates and incorporates by references its answers to Paragraphs 1
- 14 of
Count I as Paragraphs 1 - 14 of this Count III as though fully stated herein
.
15 .
This allegation states a legal conclusion and no answer is required .
16
This allegation states a legal conclusion and no answer is required
.
17 .
This allegation states a legal conclusion and no answer is required
.
18
.
CSX denies the allegations of Paragraph 18 .
19 .
CSX admits the allegations of Paragraph 19
.
20 .
This allegation states a legal conclusion and no answer is required .
21
.
CSX denies the allegations of Paragraph 21
.
22
.
CSX denies the allegations of Paragraph 22 .
Wherefore, CSX respectfully requests the Board to deny all relief requested by
the Complainant .
AFFIRMATIVE DEFENSES
1
.
Plaintiff failed to comply with the requirements of Section 31 of the Illinois
Environmental Protection Act in that CSX responded appropriately to the IEPA's Notice
of Violation, it presented a valid and complete Compliance Commitment Agreement and
the IEPA unreasonably refused to accept CSX's Compliance Commitment Agreement
.
The Agency's stated basis for denial, the need for additional monitoring, could have been
addressed through further negotiation
.
2
.
The Board has no jurisdiction to hear actions or issue injunctions pursuant to
Section 43
of
the Illinois Environmental Protection Act since Section 43 only authorizes
 
Illinois courts to issue such injunctions
. Clean the Uniform Company v. Aramark
Uniform & Career Apparel, Inc., 2002 WL 31545663, PCB 03-21, November 7, 2002
.
3
.
Even if the Board had such jurisdiction, no action can be brought pursuant to
Section 43 since no current emergency is alleged. According to the allegations of the
complaint, the spill occurred in December of 2004, no allegations are made of an ongoing
emergency and allegations asserting jurisdiction under Section 43 rely on the "emergency
nature at the time of the derailment." (Complaint, Count I, Paragraph 3)
4 .
The Board has no basis to issue an order to CSXT to "cease and desist from
further violations of the Act" since the releases alleged in the complaint have been
addressed through a Compliance Commitment Agreement presented to the Illinois
Environmental Protection Agency. As a result of CSXT's activities the alleged imminent
hazards discussed in the complaint have been addressed and no ongoing violations have
been alleged from which CSXT could be ordered to "cease and desist
."
5
.
The Board has no jurisdiction to penalize CSXT with regard to the derailment
.
CSXT's operations are regulated solely by the federal government pursuant to the
Interstate Commerce Termination Act. Any fault or penalties associated with the
derailment itself could only be assessed pursuant to that statute
.
6 .
The Board has no basis to award attorneys fees, since the Attorney General has
not alleged (and cannot allege) that the violations stated in the complaint were the result
of "willful, knowing or repeated violations" of the Illinois Environmental Protection Act
as required pursuant to Section 42(f)
.
 
prejudice .
Dated: January 19, 2006
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Telephone: 312/849-8100
Wherefore, CSXT respectfully requests that the Board dismiss this complaint with
Respectfully submitted,
CSX T
-TATION, INC .
avi
eser
One of its Attorneys
 
RECEIVED
BEFORE THE
CLERK'S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
JAN 1 9 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF
ILLINOIS
Pollution Control Board
Complainant,
)
v .
)
PCB 06-51
(Enforcement- Air, Water, Land)
CSX TRANSPORTATION, INC .,
)
a Virginia corporation,
)
Respondent .
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondent's Response
to Motion to Strike and Amended Answer and Affirmative Defenses upon those listed on
the attached Notice of Filing by first class mail, postage affixed.
Respectfully submitted,
ActivcA3417883 .2
By :
lid
ieser
One of its Attorneys
Dated: January
19,
2006
McGuireWoods LLP
77 West Wacker, Suite
4100
Chicago, IL 60601
Telephone :
312/849-8100

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