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,
vs.
The BURLINGTON NORTHERN SANTA FE
)
)
)
)
)
)
RAILWAY COMPANY, a Delaware Corporation)
Respondents.
)
)
PCB- 07-44
Citizen's Enforcement
§21(e), §12(a), §12(d)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
See Attached Service List
PLEASE TAKE NOTICE that on July 19, '2007, the attached document,
Complainant's Reply Brief In Support of Its Motion to Strike Burlington Northern and
Santa Fe's Affirmative Defenses, 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 19
th
day of July,
2007, with proper postage affixed.
Indian Creek Development Company and
Chicago Land Trust Company
t/u/t
3291,'
dated December 15, 1981
By
tJteun
e, Setiteu
One of Its Attorneys
F:\GCS\lndian Creek Development Not. of Filing - Reply Brief in Support of Mot. to Strike
PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR'AEceDvED
INDIAN CREEK DEVELOPMENT COMPANY,)
CLERK'S OFFICE
an Illinois partnership, individually as beneficiary)
JUL 1 9 2007
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.
THE
BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
STATE OF ILLINOIS
Pollution Control Board
PCB- 07-44
Citizen's Enforcement
§21(e), §12(a), §12(d)
COMPLAINANT'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO STRIKE
BURLINGTON NORTHERN AND SANTA
FE'S
AFFIRMATVE DEFENSES
Complainant, Indian Creek Development Company, and the Chicago Title and
Trust Company as trustee under trust 3291, dated December 15, 1981,
(collectively
"Indian
Creek"), files this reply brief in support of its motion to strike the affirmative
defenses
of Respondent, Burlington Northern and Santa Railway Company ("BNSF").
INTRODUCTION
The response brief of the BNSF amply demonstrates how, over 14 years later
and despite a consent decree with
State authorities, it is possible to be dealing with the
cleanup
of the BNSF's release of diesel fuel on January 20, 1993. Despite an answer
denying facts which rightly should have been admitted (such as the source of the diesel
fuel contamination) and the loss
of its prior motion claiming that this case is duplicative
of the prior consent decree, the BNSF marches on. It now urges the Board to let stand
wholly conclusory affirmative defenses lacking any particularity which fail to even
identify to which count they apply. Such pleading is no accident. It is intended to
unduly broaden discovery, the scope of the hearing, keep Indian Creek in the dark and
increase the time as
well as the expense of these proceedings. Based on what is pled it
is not entirely possible to assess whether all of the alleged affirmative defenses are
actually affirmative defenses at all! Not even the elements of the alleged affirmative
defenses have been pled.
Indian Creek urges the Board to put an end to the
gamesmanship.
ARGUMENT
Indian Creek denies the implication in the BNSF's brief that Indian Creek "does
not claim that it is not informed of the substance of the defense." Significantly, it is
beyond dispute that Illinois is a fact pleading and not a notice pleading jurisdiction,
where pleading the substance is adequate. In order to set forth a good and sufficient
claim or defense, a pleading must allege ultimate facts sufficient to satisfy each element
of the cause of action or affirmative defense pled. Knox College v. Celotex Corp., 88
1I1.2d 407, 430 N.E.2d 976 (1981); Richco Plastic Co. v. IMS Co., 288 III. App. 3d 782,
681 N.E.2d 56 (1
st
Dist. 1997). It is likewise beyond dispute that as to the pleading of
affirmative defenses, Section 2-613( d)
of the Code of Civil Procedure specifically
provides that the facts constituting any affirmative defense must be plainly set forth in
the defendants' answer. 735 ILCS 5/2-613( d).
Further, the facts establishing an affirmative defense must
be pled with the same
degree of specificity as required by a plaintiff to establish a cause of action. International
Insurance
Co. v. Sargent and Lundy, 242 III. App. 3d 614, 630, 609 N.E.2d 842, 853
(1 st Dist. 1993), citing Kermeen v. City of Peoria, 65 III. App. 3d 969, 973, 382 N.E.2d
2
1374 (3rd Dist. 1978). Yet further, the Board's procedural rules provide that "any facts
constituting an affirmative defense must
be plainly set forth before hearing in the answer
or in a supplemental answer, unless the affirmative defense could not have been known
before hearing." 35 III. Adm. Code 103.204(d).
There is good reason for the pleading requirements regarding affirmative
defenses. Indian Creek is entitled to know what is claimed and prepare
a
defense to
the BNSF's claims; Not only is that effort substantially hampered by the lack of factual
allegations, the facts can be shifted to whatever suits the BNSF at whatever
pOint in
time it ultimately chooses to state those facts. Accordingly, the scope of discovery is
pretty much whatever the BNSF wants it to be at any point in time. The affirmative
defenses are likewise virtually immune from motions such as summary judgment.
The BNSF has pled six (6) counts
of affirmative defenses as follows:
First Affirmative Defense.
Complainant knew or reasonably should have
known
of the alleged contamination on its property more than five years
prior to filing the complaint. Accordingly, complainant's claims must be
dismissed pursuant to the applicable statute of limitations. 735 ILCS 5/13-
205.
Second Affirmative Defense.
Complainant has failed to mitigate its
damages.
Third Affirmative Defense.
Complainant knew or reasonably should have
known
of the alleged contamination on its property many years ago.
Complainant chose not to bring this lawsuit for many years after having
such knowledge. As such, Complainant .has waived its rights to make
claims against BNSF based on the alleged contamination.
Fourth Affirmative Defense.
Complainant knew or reasonably should
have known
of the alleged contamination on its property many years ago.
Complainant chose not to bring this lawsuit for many years after having
such knowledge. As such, Complainant is estopped from asserting claims
against BNSF based on the alleged contamination.
3
Fifth Affirmative Defense.
Complainant knew or reasonably should have
known
of the alleged contamination on its property many years ago.
Complainant chose not to bring this lawsuit for many years after having
such knowledge. As such, the doctrine of laches prohibits complainant
from asserting claims against BNSF based on the
alleged contamination.
Sixth Affirmative Defense.
Complainant's purported damages have not
been identified with sufficient particularity, to the extent such damages
even exist.
The BNSF claims that its affirmative defenses are
"based, in part, on the
extensive allegations made
in the Complaint". It is unstated what constitutes the "other
part" upon which the BNSF supposedly bases its affirmative defenses or even on what
additional portions
of the ,complaint the BNSF relies. Contrary to BNSF's claim, Indian
Creek finds its allegations to be deliberately vague and unclear, making it impossible to
mount a defense, conduct motion practice regarding the affirmative defense, or
otherwise respond to the BNSF's affirmative defenses.
Indian Creek is not required to
guess.
Regarding the sixth affirmative, what damages
"have not been identified with
sufficient particularity,,?1 Indian Creek prayed that the Board order the BNSF to cease
and desist from further violations, remediate the diesel
fuel contamination it caused and
reimburse Indian Creek for its costs and expenses which are continuing to accrue.
Regarding the second affirmative defense, what exactly does the BNSF claim that
Indian Creek claim should have been done to mitigate the damages? Remediate the,
diesel fuel contamination which, despite the obvious, the BNSF now denies causing?
1 In a valid affirmative defense, the respondent alleges "new facts or arguments that, if true, will defeat ... the
government's claim even if all allegations in the complaint are true." Grand Pier Center LLC v. River East LLC, PCB
No. 05-157, slip op. at 3 (January 5,2006). Accordingly, the alleged failure to adequately specify damages is not an
affirmative defense at all and should be stricken for this reason alone.
4
Even in its brief, the BNSF completely fails to specify all of the allegations of the
Complaint upon which it relies for a factual basis regarding its affirmative defenses. The
BNSF
merely recites some general complaint allegations, without being bound to them,
in an attempt to make it appear that there are facts that support its affirmative defenses
even though it
completely failed to allege or even reference such facts in actually
pleading
the alleged affirmative defenses. The BNSF is careful leave its references to
Complaint allegations open ended.
Interestingly, the BNSF is disingenuous. In is brief the BNSF claims that Indian
Creek should have reasonably known that the BNSF had contaminated its property
more than 5 years before it brought "the claim", based on the allegation in the complaint
that the direction of groundwater flow is from the BNSF Property to the Indian Creek
Property. BNSF Brief at 2. In its answer, however, the BNSF denied the allegation
regarding the direction of groundwater flow and stated as follows regarding that
allegation in the Complaint:
4. The direction of groundwater flow is from the BNSF Property to
the
Premises and Indian Creek, which runs through the Premises.
ANSWER:
BNSF admits that a portion of Indian Creek runs through
the
Premises.
BNSF states that groundwater flow is complex
and denies the remaining allegations contained in this
paragraph.
Emphasis added.
Now, the BNSF now also claims to rely on the allegations in the complaint
regarding the discharge of contaminants to Indian Creek's property being ongoing.
However, the BNSF has denied those
allegations in its answer as follows:
17. Diesel fuel contamination on the BNSF Property continues to
migrate onto the
Premises, further contaminating the soil and
groundwater
located on and under the Premises on an ongoing
basis.
5
ANSWER:
BNSF denies the allegations contained in this
paragraph.
As we have seen above, ultimate facts sufficient to satisfy each element
of each
affirmative defense must
be pled. BNSF has done no such thing. The BNSF has
completely failed to plead the elements of its claimed affirmative defenses.. For
example, there are six elements
of equitable estoppel:
(1) there must be words or conduct by party against whom estoppel is
alleged amounting to misrepresentation or concealment of material facts;
(2) party against whom estoppel
is alleged must have had knowledge at
time representations were made that representations were untrue; (3)
truth respecting representations must
be unknown to party claiming
benefit
of estoppel at time that representations were made and acted on
by him; (4) party estopped must intend
or reasonably expect that his
conduct
or representations will be acted upon by party asserting estoppel;
(5) party claiming benefit
of estoppel must have in good faith relied upon
misrepresentation to his detriment; and (6) the party claiming benefit
of
estoppel must have so acted because of representations that he would be
prejudiced if first party is permitted to deny truth thereof. City
of Rockford
v. Suski, 307 "I.App.3d 233, 718 N.E.2d 269
As the elements have not been pled [anywhere], the affirmative defenses must be
stricken.
CONCLUSION
The BNSF's method of pleading is no accident. If allowed, it would unduly
broaden discovery, broaden the scope of evidence admitted at hearing and increase the
time
as well as the expense of these proceedings and deprive Indian Creek of preparing
its case knowing the identity
of the facts at issue. The Board and Indian Creek are
entitled to hold
BNSF to a set of facts. If the BNSF is unable to plead such facts in good
faith it should have no affirmative defenses. The
BNSF is not allowed to proceed with
some undefined facts to be revealed at the hearing for the first time. TheBNSF is not
allowed to preclude motions directed against the affirmative defenses - motions such as
6
whether the BNSF is allowed a statute of limitations or other defenses (even if the
BNSF had a basis for such defense(s), which it does not) where the BNSF
is obligated
to identify and remediate the contamination (which the BNSF now denies having
caused) by the terms of the
Consent Decree, and whether any affirmative defenses are
proper as a
result of the BNSF's unclean hands resulting from its dishonest attempt to
close out its
obligations under the Consent Decree by requesting IEPA to close the
matter without informing
IEPA of the contamination found on the Indian Creek property
- contamination which the BNSF knew of first hand. The BNSF's closeout report is
contained in Exhibit B to the Complaint. It is no wonder that the BNSF does not wish to
be tied down to any particular set of facts. Nonetheless that is what is required. The
BNSF's gamesmanship must stop.
Its affirmative defenses must be stricken and this
matter must proceed in an orderly manner.
Glenn C. Sechen
James
R. Griffin
Hope
Whitfield
Schain, Burney, Ross, & Citron, Ltd.
222
N. LaSalle Street
Suite
1910
Chicago, Illinois 60601
(312) 332-0200
(312) 332-4514 telefax
gsechen@schainlaw.com
Respectfully submitted,
INDIAN CREEK
DEVELOPMENT COMPANY
By
tJteuu
e, Sedte«
One of Its Attorneys
Indian CreeklPCB Enforcement ActionlPleadings. FiledlResponse Brf re M Strike Affirmative Defenses FNL.doc
Printed on Recycled Paper
7
Service List
INDIAN CREEK DEVELOPMENT COMPANY,
Complainant,
vs.
PCB-
07-44
The BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY, a Delaware Corporation
Respondents.
Citizen's Enforcement
§21(e), §12(a), §12(d)
Weston W. Marsh
Robert
M. Barratta Jr.
James
H. Wiltz
Freeborn & Peters, LLP
311 S. Wacker Drive, Suite 3000
Chicago, Illinois 60606
312-360-6000
312-360-6520
- Facsimile
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Ctr., Ste. 11-500
100
W. Randolph Street
Chicago,
Illinois 60601
(312) 814-8917
(312) 814-3669 - Facsimile
Nancy Tikalsky
Environmental Enforcement IAsbestos Litigation
Division
100 W. Randolph Street
Chicago,
Illinois 60601
312-814-6986
312-814-2347 - Facsimile
Environmental Bureau
of the
Illinois Attorney General
69
West Washington Street
Suite 1800
Chicago, Illinois 60602
312-814-0660
F:\PCB Enforcement Action\Service List.doc
PRINTED ON RECYCLED PAPER
Dorothy M. Gunn
Illinois Pollution Control Board
James
R.
Thompson Ctr, Ste. 11-500
100
W. Randolph Street
Chicago,
Illinois 60601
312-814-3620
312-814-3669 - Facsimile
Megan Boyle, Legal Counsel
Illinois Environmental Protection Agency
Division
of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
217-785-1621
217-782-9807
- Facsimile
John Waligore, Legal Counsel
Illinois Environmental Protection Agency
Division
of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
217-782-9836
217-782-9807
- Facsimile
Stuart
A.
Petersen
Law Offices
of Stuart
A.
Petersen, Ltd.
601 N. Farnsworth
Aurora,
Illinois 60505
630-898-6612
630-898-6709
(additional plaintiffs counsel)
