BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
INDIAN CREEK DEVELOPMENT COMPANY,
an Illinois partnership, individually as
beneficiary under trust 3291 of the Chicago
Title and Trust Company dated December 15, 1981
and the Chicago Title and Trust Company,
as trustee under trust 3291, dated
December 15, 1981,
Complainant,
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware Corporation,
Respondent .
vs.
DATE : January 5, 2007
Weston W . Marsh
Robert M. Baratta, Jr .
James M. Witz
FREEBORN & PETERS LLP
311 South Wacker Drive
Suite 3000
Chicago, Illinois 60606
(312) 360-6000 - telephone
(312) 360-6597 - facsimile
PRINTED ON RECYCLED PAPER
NOTICE OF FILING
TO
:
Glenn C . Sechen
Schain, Burney, Ross Citron, Ltd .
222 N. LaSalle Street, Suite 1900
Chicago, Illinois 60601
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PLEASE TAKE NOTICE that I have today filed wi
~,f1eae:ef:the& erk of to
Illinois Pollution Control Board the Respondent's Motion to Di
by
served upon you . Take note that you may be required to attend a hearing at a date set by the
Board
.
)
)
)
)
)
)
)
PCB-07-44
RECEIVED
)
Citizen's
§21(e), §12(a),
Enforcement§12(d)
CLERK'S OFFICE
)
JAN 1-xM7
STATE OF ILLINOIS
Pollution
Control Board
)
)
SUBSCRIBED AND SWORN TO
BEFORE ME THIS 5th DAY OF
RY 2007
OFFICIAL SEAL
PAULA M KRAHN
NOTARY PUBLIC-STATE OF U NM
MY COAMaSSION E70'IRES.9Y130S
PRINTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the Respondent's Motion to Dismiss by
depositing the same in the U .S
. Mail box at 311
South Wacker Drive, Chicago, Illinois before
5
:00 p.m. on January 5, 2007, postage prepaid and addressed to:
Glenn C . Sechen
Schain, Burney, Ross Citron, Ltd .
222 N. LaSalle Street, Suite 1900
Chicago, Illinois 60601
zLg,
Robert M. Baratta,
~~
Jr .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
INDIAN CREEK DEVELOPMENT COMPANY, )
an Illinois partnership, individually as
)
beneficiary under trust 3291 of the Chicago
)
Title and Trust Company dated December 15, 1981 )
and the Chicago Title and Trust Company,
)
as trustee under trust 3291, dated
)
December 15, 1981,
)
vs.
PRINTED ON RECYCLED PAPER
Complainant,
THE BURLINGTON NORTHERN AND SANTA FE )
RAILWAY COMPANY, a Delaware Corporation,
)
Respondent .
)
RESPONDENT'S MOTION TO DISMISS
Respondent, the BNSF Railway Company ("BNSF"), hereby moves the Board to dismiss
as duplicative the Complaint filed by Complainant . In support of its Motion to Dismiss,
Respondent states as noted below and also files its Memorandum in Support of its Motion to
Dismiss concurrently herewith .
I .
This matter arises out of the purported release of diesel fuel as a result of a
January 20, 1993 collision between two trains on BNSF property in the vicinity of
Complainant's facility
.
2 .
Complainant files this citizen's
enforcement action under the Illinois
Environmental Protection Act (the "Act") requesting a finding by the Board that BNSF has
violated the Act and seeking environmental cleanup of the diesel fuel
.
ReFCLERK'Se
OFFIC
E
PCB- 07-44
STATE OR
ILLINOt6
Pollution Control
Board
Citizen's Enforcement
§21(e), §12(a), §12(d)
3.
The Illinois Attorney General and the State's Attorney of Kane County filed a
lawsuit against BNSF in the Circuit Court of Kane County alleging violations of the Act and
seeking cleanup of the diesel fuel
.
4.
The Circuit Court of Kane County entered a Consent Order addressing the very
same types of relief sought by Complainant in this action. The Consent Order is attached as
Exhibit A to the Complaint .
5.
The Complaint duplicates the Kane County lawsuit and requests the same types of
relief as that provided in the Consent Order .
WHEREFORE, for the reasons stated above and the reasons set forth in the memorandum
filed concurrently herewith, BNSF requests that the Board dismiss the Complaint with prejudice
.
Respectfully submitted,
BNSF RAILWAY COMPANY
By:
Weston W
. Marsh
Robert M. Baratta, Jr.
James M . Witz
FREEBORN & PETERS LLP
311 South Wacker Drive
Suite 3000
Chicago, Illinois 60606
(312) 360-6000 - telephone
(312) 360-6597 - facsimile
1256925
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