BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Weston W . Marsh
Robert M
. Barratta Jr .
James H . Wiltz
c/o Freeborn & Peters, LLP
311 S
. Wacker Drive, Suite 3000
Chicago, IL 60606
PLEASE TAKE NOTICE that on
RECEIVED
CLERK'S OFFICE
JAN I
2nn7
STATE OF
ILLINOIS
INDIAN CREEK DEVELOPMENT COMPANY,
)
Pollution Control Board
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,
)
vs .
)
PCB- 07-44
Citizen's Enforcement
The BURLINGTON NORTHERN SANTA FE
)
§21(e), §12(a), §12(d)
RAILWAY COMPANY, a Delaware Corporation
)
Respondents .
)
NOTICE OF FILING AND PROOF OF SERVICE
TO :
Dorothy M . Gunn
Illinois Pollution Control Board
James R. Thompson Ctr, Ste
. 11-500
100 W. Randolph Street
Chicago, Illinois 60601
January 16, 2007, the attached document,
Complainant's Motion to Set Briefing Schedule, was filed with the Clerk of the Pollution
Control Board and is hereby served upon the person(s) referenced above by placing a
copy of the same in the U
.S . mail at 222 N
. LaSalle Street, Chicago, Illinois on or before
4:00 p .m
. on the 16th
day of January, 2007, with proper postage affixed
.
Indian Creek Development
Company and
Chicago Land Trust Company t/ult 3291,
dated December 15, 1981
By 9€e mI?.
5echea
One of Its Attorneys
F
:\GCS\Indian Creek Development JB Industries\PCB Enforcement Action\Pleadings, Filed\7] Not
. of Filing - Mot
. for Briefing
Sched . .doc
PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Receilveo
INDIAN CREEK DEVELOPMENT COMPANY, )
an
Illinois Partnership, Individually as
^+~ r >~
0r
)
beneficiary
under trust 3291 of the Chicago
STATE OF
iLLIN
)
t'oiiution
Control
OIS
Title and Trust Company dated December 15,
)
Board
1981 and the Chicago Title and Trust Company, )
as trustee under trust 3291, dated December
)
15, 1981
)
Complainant,
)
vs.
)
PCB- 07-44
Citizen's Enforcement
The BURLINGTON NORTHERN SANTA FE ) §21(e), §12(a), §12(d)
RAILWAY COMPANY, a Delaware Corporation )
Respondents
.
)
MOTION TO SET BRIEFING SCHEDULE
NOW COME the complainants, Indian Creek Development Company, individually
and as the beneficiary owner under the Chicago Title and Trust Company trust number
3291 dated December 15, 1981 and the Chicago Title and Trust Company, trustee
under trust number 3291 dated December 15, 1981 (collectively, "Indian Creek") and
move the board to set a briefing schedule in order that Indian Creek may file a response
to the motion to dismiss and the memorandum in support thereof which have been filed
by the Respondent, the Burlington Northern Santa Fe Railway Company
("BNSF")
. In
support thereof, Indian Creek states as follows
:
1 .
This matter involves a release of diesel fuel on January 20, 1993 on
property owned and operated by the BNSF ("BNSF Property")
.
PRINTED ON RECYCLED PAPER
2.
The Complaint alleges that property owned by Indian Creek ("Indian Creek
Property") continues to receive soil and groundwater contamination flowing from the
BNSF Property fourteen (14) years after the release
.
3 .
In 1996, Prosecutors filed a civil enforcement action in Circuit Court and
obtained a consent decree against the BNSF which expressly precludes enforcement
by third parties such as Indian Creek
. A copy of the Consent Decree is attached to
Indian Creek's complaint as Exhibit A thereto
.
4.
The Complaint alleges that at the time of the consent decree
contamination was not known to exist on the Indian Creek Property although the BNSF
had an obligation to investigate the extent of contamination, a requirement which was
largely ignored by the BNSF and after contamination was discovered on the Indian
Creek Property the BNSF recently attempted to close the incident without informing the
Agency of the contamination found on Indian Creek's property, despite the BNSF's
actual knowledge of said contamination .
5.
Now, fourteen (14) years after the release, near the midway point of the
second decade after the initial incident the BNSF seeks to deny Indian Creek ANY right
to enforce the Act and protect its property from ongoing environmental harm in ANY
forum despite the legislative dictate found in Section 2(c) of the Act that the Act shall be
liberally construed so as to effectuate its purposes and the express language of Section
2(a)(v) of the Act :'
The General Assembly finds:
(v) that in order to alleviate the burden on enforcement agencies, to
assure that all interests are given a full hearing, and to increase public
participation in the task of protecting the environment, private as well as
governmental remedies must be provided
Of course, citizen enforcement actions may not normally be filed in Circuit Court
.
Printed on Recycled Paper
2
6. While the Board
must make a Section 30(d)(1)
duplicative/frivolous
determination, Indian Creek finds it imperative to respond to the motion to dismiss and
misleading memorandum filed by the BNSF before that determination is made
.
7.
Counsel for Indian Creek is simultaneously attempting represent the
applicant in a landfill sifting outside the Chicago area and draft a CERCLA brief in
Federal Court and accordingly requests the relief set forth below
.
WHEREFORE, Complainants, pray that the Board grant the following relief
against the BNSF :
A.
Grand Indian Creek twenty-one (21) days up to and including February 6,
2007, to respond to the motion to dismiss and memorandum filed by the BNSF
; and,
B.
Grant such other and further relief as the Illinois Pollution Control Board
may deem appropriate .
Respectfully Submitted,
Indian Creek Development Company and
Chicago Land Trust Company t/u/t 3291, dated
December 15, 1981
Printed on Recycled Paper
By: Cf€~I
?, Led en
GLENN C. SECHEN
Schain, Burney, Ross & Citron, Ltd .
222 North LaSalle St ., #1910
Chicago, IL 60601
312-332-0200
312-332-4514 telefax
gsechenaschainlaw
.com
F :\GCS\Indian
Creek Development JB Industries\PCB Enforcement Action\Pleadings, Filed\6] IC M for Briefing
Schedule, FNL .doc
3
