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,
THE
BURLINGTON
NORTHERN
AND
SANTA
FE
RAILWAY
COMPANY,
a Delaware
Corporation,
ECEVED
CLERK’S
OFFICE
I!
STATE
OF
ILLINOIS
Pollution
Control
Board
)
PCB-
07-44
)
Citizen’s
Enforcement
)
§21(e),
§
12(a),
§
12(d)
)
ECEVED
CLERK’S
OFFICE
NOTICE
OF
FILING
TO:
Glenn
C.
Séchen
Schain,
Burney,
Ross
Citron,
Ltd.
222
N.
LaSalle
Street,
Suite
1900
Chicago,
Illinois
60601
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
100
West
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
PLEASE
TAKE
NOTICE
that
I
have
today
filed
with
the
Office
of
the
Clerk
of
the
Illinois
Pollution
Control
Board
Respondent’s
Amended
Answer
to
Complaint,
a
copy
of
which
is
hereby
served
upon
you.
DATE:
July 20,
2009
Robert
M.
Baratta,
Jr.
FREEBORN
&
PETERS
LLP
311
South Wacker
Drive
Suite
3000
Chicago,
Illinois
60606
(312)
360-6000
—
telephone
(312)
360-6597
—
facsimile
BNSF
RAjJ’COMPANY
By:YM
One
of
Its
Attorneys
)
)
)
)
)
)
vs.
Complainant,
)
)
)
)
Respondent.
)
JUL20
2009
STATE
OF
ILLINOIS
Pollution
Control
Board
PRINTED
ON
RECYCLED
PAPER
I
2569O
v4
CERTIFICATE
OF SERVICE
Glenn
C.
Sechen
Schain,
Bumey,
Ross
Citron,
Ltd.
222 N.
LaSalle
Street,
Suite 1900
Chicago,
Illinois 60601
Bradley P. Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
100
West
Randolph Street,
Suite
11-500
Chicago,
Illinois
60601
Robert
M. Baratta,
Jr.
I,
the undersigned,
certify
that
I have
served
Rcspondent’s
Amended
Answer to
Complaint
by
depositing
the
same in the
U.S.
Mail
box
at
311
South
Wacker Drive,
Chicago,
Illinois
before 5:00 p.m. on
July 20, 2009,
postage prepaid and
addressed to:
PRINTED ON
RECYCLED
PAPER
125690
1v4
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,
)
E
v
1981
and
the
Chicago
Title
and
Trust
Company,
)
CLERK’S
OFC
as
trustee
under
trust
3291,
dated
December
)
15,
1981
)
STATE
OF
ILLINOIS
Complainant,
)
Pollution
Control
Board
)
vs.
)
PCB-07-44
)
Citizen’s
Enforcement
The
BURLINGTON
NORTHERN
SANTA
FE
)
§21(e),
§12(a),
§12(d)
RAILWAY
COMPANY,
a
Delaware
Corporation
)
)
Respondent.
)
AMENDED
ANSWER
TO
COMPLAINT
NOW
COMES
the
Respondent,
BNSF
Railway
Company
(“BNSF”)
and
for
its
answer
to
the
Complaint
states
as
follows:
1.
At
all
times
relevant
hereto,
complainant,
Indian
Creek
Development
Company,
an
Illinois
Partnership,
was
the
beneficial
owner,
through
the
aforesaid
Chicago
Title
and
Trust
Company
t/ult
3291,
of
certain
real
property
in
Kane
County,
Illinois
commonly
known
as
1500
Dearborn
Avenue,
Aurora,
Illinois
60505
and
including
property
index
numbers:
15-13-376-001;
15-14-479-005,
15-14-479-006,
15-14-479-009,
and
15-14-479-010;
15-23-227-026
and
15-23-
227-028;
15-24-101-004;
15-24-102-001,
15-24-102-008,
15-24-102-009
and
15-24-102-010;
15-24-103-002
and
15-24-103-003.
(collectively
the
“Premises”).
ANSWER:
BNSF
lacks
knowledge
thereof
sufficient
to
form
a
belief
as
to
the
truth
or
falsity
of
the
allegations
contained
in
this
paragraph.
2.
At
all
times
relevant
hereto,
respondent,
BNSF,
a
Delaware
corporation,
owned
real
property
adjacent
to
the
Premises
which
containedrailroad
tracks
upon
which
BNSF
operated
a
railroad
(“BNSF
Property”).
Printed
on
Recycied
Paper
i
134030h’2
ANSWER:
BNSF
admits
the
allegations
contained
in
this
paragraph.
3.
On or
about
January
20,
1993
there
occurred
a
release
through
the
discharging,
depositing, dumping,
leaking
and spilling
of thousands of
gallons
of
diesel
fuel
as
a
result
of
the
industrial
or
commercial railroad
operations
conducted
on
the BNSF
Property.
ANSWER:
BNSF
admits
only
that
on
or
about
January
20,
1993,
diesel
fuel
was
released
on
the
BNSF
Property.
BNSF
denies
the
remaining
allegations
contained
in
this
paragraph.
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
allegatiàns
contained
in
this
paragraph.
5.
Subsequent
to
the
release
and
pursuant
to the
Act,
including
Sections
12(a)
and
12(d),
the
Attorney
General
and
State’s
Attorney
of
Kane
County
filed
an
enforcement
action
against
the
BNSF
and
others
in
Circuit
Court
bearing
case
number
CH
KA
95
0527.
ANSWER:
BNSF
admits
the
allegations
contained in
this
paragraph.
6.
On
or
about
February
5, 1996,
a
consent
decree
(hereinafter,
“Consent
Decree”)
was
entered
in
the
Kane
County
enforcement
action
regarding
the
release
of diesel
fuel
on the
BNSF
Property.
A copy
of
that
Consent
Decree
is
attached
hereto
as Exhibit
A
ANSWER:
BNSF
admits
the allegations
contained
in
this
paragraph.
7.
Among
other
things,
the Consent
Decree
required
the
BNSF
to prevent
further
migration
of
the
diesel
fuel
contamination
and
to
determine
the
extent
to
which
the
soil
and
groundwater were
impacted
both
on and
off
of the
BNSF
Property.
Printed
1340301
onv2Recycled
Paper
2
ANSWER:
BNSF
states
that
the
Consent
Decree
attached
to
the
Complaint
as
Exhibit
A
speaks
for
itself.
8.
Pursuant
to
specific
deadlines,
the
Consent
Decree
required
the
BNSF
to
submit
a
work
plan
to,
and
obtain
the
approval
of,
the
Illinois
Environmental
Protection
Agency
(“Agency”),
and
it
also
required
that
the
BNSF
notify
the
State’s
Attorney,
Attorney
General
and
JEPA
in
writing
of
the
action(s)
taken.
See
generally
Exhibit
A.
ANSWER:
BNSF
states
that
the
Consent
Deéree
attached
to
the
Complaint
as
Exhibit
A
speaks
for
itself.
9.
Thereafter,
the
BNSFwas,
pursuant
to
the
Consent
Decree,
required
to
file
a
close-out
report
which,
at
a
minimum,
was
to
include
a
summary
of
all
sampling
and
other
data
required
to
be
collected,
as
well
as
a
certification
by
an
Illinois
Registered
Professional
Engineer
that
the
requirements
of
the
Consent
Decree
had
been
met.
ANSWER:
BNSF
states
that
the
Consent
Decree
attached
to
the
Complaint
as
Exhibit
A
speaks
for
itself.
10.
The
BNSF’s
initial
efforts
to
remediate
the
affected
areas,
limit
the
migration
of
free
product,
and
recover
released
diesel
fuel
were
primarily
focused
on
areas
distanced
from
the
Premises.
Moreover,
these
efforts
were
largely
unsuccessful,
resulting
in
the
recovery
of
only
a
small
amount
of
the
diesel
fuel
that
was
actually
released.
ANSWER:
BNSF
denies
the
allegationscontained
in
this
paragraph.
11.
Since
1993,
the
diesel
fuel
has
remained
abandoned
on
and
under
the
BNSF
Property
and
thereafter
has
migrated,
and
continues
to
migrate,
from
the
BNSF
Property
onto
and
under
the
Premises.
ANSWER:
BNSF
denies
the
allegationscontained
in
this
paragraph.
Printed
on
Recycled
Paper
3
1340301
v2
12.
On
or
about
late
October
or
November,
2000,
Indian
Creek
excavated
a small
portion
of
a
building
floor
on the
Premises
in
order
to
install
a
piece
of equipment
there.
The
area
of the
excavation
of
the
Premises
was
located
near
the
boundaries
of the
BNSF
Property.
ANSWER:
BNSF
lacks
knowledge
thereof
sufficient
to
form
a
belief
as
to the
truth
or falsity
of
the
allegations
contained
in
this paragraph.
13.
During
the
excavation,
an
odor
was
noted
and
free
product
and
apparently
contaminated soil
and
groundwater
were
observed.
Subsequently,
samples
of
the
free
product
were
taken
from
the excavated
part
of
the Premises,
and
lab analysis
identified
the
free
product
as
diesel
fuel.
ANSWER:
BNSF
lacks
knowledge
thereof
sufficient
to form
a
belief
as
to
the
truth
or falsity
of
the
allegations
contained
in this
paragraph.
14.
Indian
Creek
notified
BNSF
of the
excavation
on
the
Premises,
and
the
attendant
odor,
and
the
BNSF
responded
by
removing
some
of
the
contaminated
soil from
the
excavation
on
the
Premises.
ANSWER:
BNSF
admits
that
it removed
and
properly
disposed
of
some
soil
from
the
Premises.
15.
The
BNSF
has
a duty
to prevent
the
migration
to and
contamination
of
the soil
and
groundwater
on and
under
the
Premises,
but despite
the
obligations
imposed
by
law
and
the
Consent
Decree, the
BNSF
has
completely
failed
to take
sufficient
steps
to
halt
the migration
of
the
diesel
fuel
contamination
onto
the
soil
and
groundwater
on and
under
the
Premises.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
16.
In
contravention
of
its
duty,
the BNSF
did little
to remediate
the
affected
areas,
recover
released
diesel
fuel,
limit
the
migration
of
the diesel
fuel
contamination,
adequately
sample
to determine
the
extent
of
contamination,
and
to
monitor
the
migration
of
the diesel
fuel
contaminants from
the BNSF
Property.
ANSWER:
BNSF
denies
the
allegations
contained
in this
paragraph.
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.
Printed
134030
1v2
on
Recycled
Paper
4
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
18.
Subsequent
to
the
discovery
of
diesel
fuel
contamination
on
the
Premises,
without
having
performed
any
remediation
of
the
premises
and
without
prior
notification
to
Indian
Creek,
the
BNSF
requested
Agency
closure
of
the
incident
pursuant
to
the
Consent
Decree
without
notifying
the
Agency
of
the
contamination
that
Indian
Creek
found
on
the
Premises.
ANSWER:
BNSF
admits
only
that
it
requested
closure
of
the
incident
under
the
Consent
Order.
BNSF
denies
the
remaining
allegations
contained
in
this
paragraph.
19.
The
BNSF
failed
to
disclose
the
contamination
of
the
Premises
to
the
Agency
despite
Indian
Creek’s
notification
to
the
BNSF
regarding
the
contamination
it
found
on
and
under
the
Premises
when
it
excavated,
despite
the
BNSF’s
removal
of
contaminated
soil
from
the
excavation
on
the
Premises,
despite
the
observations
of
BNSF’s
agents,
servants,
and
employees
when
it
removed
the
contaminated
soil,
and
despite
the
fact
that
laboratory
analysis
of
samples
taken
from
the
excavations
of
the
Premises
revealed
that
the
contamination
was
diesel
fueL
A
copy
of
the
BNSF’s
request
for
closure
dated
April
2,
2001
with
a
prior
request
for
closure
dated
November
6,
1998
attached
thereto,
attached
to
this
petition
as
Exhibit
B.
ANSWER:
BNSF
admits
only
that
Exhibit
B
is
a
true
and
correct
copy
of
the
April
2,
2001
letter
to
IEPA.
BNSF
denies
the
remaining
allegations
contained
in
this
paragraph.
20.
The
spread
of
diesel
fuel
contamination
to
portions
of
the
BNSF
property
not
initially
impacted
and
eventually
to
the
Premises
was
willful,
as
is
amply
demonstrated
by
the
BNSF’s
attempt
to
close
the
incident
under
the
Consent
Decree
without
informing
the
Agency
of
the
diesel
fuel
contamination
on
and
under
the
Premises.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
21.
The
Agency
is
working
to
fulfill
its
role
under
the
Consent
Decree
and
to
obtain
the
remediation
by
the
BNSF.
Printed
on
Recycled
Paper
5
I
340301
v2
ANSWER:
BNSF
admits
that
it is
working
with
the
IEPA
to
satisfy
its
obligations
under
the
Consent
Decree
and
the
IEPA
is fulfilling
its.
role
under
the Consent
Decree.
22.
The
diesel
fuel
contamination
in the
groundwater
under
both
the
BNSF
Property
and
under
the
Premises
constitutes
Water
Pollution
within
the meaning
of
Section
3.545
of
the
Environmental Protection
Act,
415
ILCS
5
et.
seq.
(“the
Act”),
as
it
is
a
nuisance,
renders
such
groundwater
harmful
or detrimental
or
injurious
to
public
health,
safety
or
welfare,
or
to
domestic, commercial,
industrial,
agricultural,
recreational,
or
other
legitimate
uses,
or to
livestock,
wild
animals,
birds,
fish, or
other
aquatic
life.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
23.
This
case
is
a refihing
of
Kane
County
case
number
04
L 607
filed
on
or
about
December
7,
2004.
ANSWER:
BNSF
denies
the
allegations
contained
in
this paragraph.
24.
This
case,
like
the
Kane
County
case,
concerns
contamination
that
has
migrated
to
and
continues
to
migrate
onto
the
Premises
from
the
BNSF
Property.
The
Kane
County
case
was
voluntarily
dismissed
on November
21,
2006.
A
copy
of the
order
of
dismissal
is
attached
as
Exhibit
C.
ANSWER:
BNSF
admits
only
that
some
of
the issues
from
the
Kane
County
case
are
similar
to
that
of this
matter
and
that
complainant
voluntarily
dismissed
the
Kane
County
case
on
or
about
November
21,
2006.
BNSF
admits
that
a copy
of
the
dismissal
order
is
attached
as Exhibit
C.
BNSF
denies
the
remaining
allegations
contained
in
this
paragraph.
COUNT
I
Section
12(a)
Violation
25.
Paragraphs
1-24
are incorporated
by
reference
as
paragraph
25
hereof.
ANSWER:
BNSF
incorporates
its
answers
to
paragraphs
1-24
as
if
fully
stated
herein.
Printed
134030
1v2
on Recycled
Paper
6
26.
Section
12(a)
of
the
Act
provides
that
no
person
shall:
Cause
or
threaten
or
allow
the
discharge
of
any
contaminants
into
the
environment
in
any
State
so
as
to
cause
or
tend
to
cause
water
pollution
in
Illinois,
either
alone
or
in
combination
with
matter
from
other
sources,
or
so
as
to
violate
regulations
or
standards
adopted
by
the
Pollution
Control
Board
under
this
Act.
ANSWER:
Section
12(e)
of
the
Act
speaks
for
itself.
27.
Section
3.550
of
the
Act
defines
“Waters”
as
all
accumulations
of
water,
surface
and
underground,
natural,
and
artificial,
public
and
private,
or
parts
thereof,
which
are
wholly
or
partially
within,
flow
through,
or
border
upon
this
State.
ANSWER:
Section
3.550
of
the
Act
speaks
for
itself.
28.
Accordingly,
the
groundwater
under
the
Premises
and
that
under
the
BNSF
Property
are
Waters
within
the
meaning
of
Section
3.550
of
the
Act.
ANSWER:
This
paragraph
contains
a
legal
conclusion
to
which
BNSF
is
not
required
to
respond.
29.
Section
3.165
of
the
Act
(415
ILCS
5/3.165)
defines
“Contaminant”
as
any
solid,
liquid,
or
gaseous
matter,
any
odor,
or
any
form
of
energy,
from
whatever
source.
ANSWER:
Section
3.165
of
the
Act
speaks
for
itself.
30.
The
diesel
fuel
which
was
released
is
a
Contaminant
within
the
meaning
of
Section
3.165
of
the
Act.
ANSWER:
This
paragraph
contains
a
legal
conclusion
to
which
BNSF
is
not
required
to
respond.
31.
Section
3545
of
the
Act
defines
“Water
Pollution”
as
such
alteration
of
the
physical,
thermal,
chemical,
biological
or
radioactive
properties
of
any
waters
of
the
State,
or
such
discharge
of
any
contaminant
into
any
waters
of
the
State,
as
will
or
is
likely
to
create
a
nuisance
or
render
such
waters
harmful
or
detrimental
or
injurious
to
public
health,
safety
or
welfare,
or
to
domestic,
commercial,
industrial,
agricultural,
recreational,
or
other
legitimate
uses,
or
to
livestock,
wild
animals,
birds,
fish,
or
other
aquatic
life.
415
ILCS
5/3.545.
ANSWER:
Section
3.545
of
the
Act
speaks
for
itself.
Printed
on
Recycled
Paper
7
134030
1v2
32.
The
General
Assembly
has
expressly found
“that
pollution
of
the
waters
of
this
State
constitutes
a menace
to public
health
and
welfare,
creates
public
nuisances,
is
harmful
to
wildlife,
fish,
and aquatic
life,
impairs
domestic, agricultural,
industrial,
recreational,
and
other
legitimate
beneficial
uses
of
water,
depresses
property
values,
and
offends
the
senses”.
415
JLCS
5/11(a).
ANSWER:
The quoted
language
from
the statute
speaks
for
itself.
33.
The
BNSF
caused
and
allowed
the
discharge
of
diesel
fuel
contaminants
on the•
BNSF
Property in 1993,
threatened,
caused
and
allowed
the
discharge
of
said
diesel
fuel
contaminants
through
migration
to
other
parts
of
the
BNSF
Property,
and
threatened
and
eventually
caused
and
allowed
the
ongoing
discharge
of
contaminants
onto
the soil
and
into
the
groundwater
on and
under
the
Premises
so
as
to
cause
and
tend
to
cause
water
pollution
in
violation
of
Section
12(a)
of
the
Act.
ANSWER:
BNSF
denies
the
allegations
contained
in this
paragraph.
34.
Because
of
the
ongoing
migration
of
the
diesel
contamination
and
its
continued
discharge
onto
and
under
the
Premises,
the violation
of
Section
12(a)
of the
Act
is
ongoing
and
will
continue
unless
and
until abated
by
order
of the
Pollution
Control
Board.
ANSWER:
BNSF
denies
the
allegations
contained in
this
paragraph.
COUNT
II
Section
12(d)
Violation
35.
Paragraphs
I
to
34 are
incorporated
by
reference
as
paragraph
35
hereof.
ANSWER:
BNSF
incorporates
its
answers
to
paragraphs
1-34
as if
fully
stated
herein.
36.
Section
12(d)
of the
Act
provides
that
no
person
shall:
Deposit
any
contaminants
upon
the
land
in such
a
place
and
manner
so
as
to
create
a
water
pollution
hazard.
ANSWER:
Section
12(d)
of
the Act
speaks
for
itself.
37.
The
BNSF
caused
and
allowed
the
deposit
of
diesel
fuel
contaminants
on
the
BNSF
Property
in
1993.
Subsequently,
the
BNSF
caused
and
allowed
the
deposited
contaminants
to
move,
migrate,
and
deposit
onto
other
portions
of
the
BNSF
Property,
and
eventually
to the
Premises.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph
Printed
134030
1v2
on Recycled
Paper
8
38.
Accordingly,
the
BNSF’s
actions
have
created
a
water
pollution
hazard
on
both
the
BNSF
Property
and
the
Premises
in
violation
of
Section
12(d)
of
the
Act.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
39.
Because
of
the
ongoing
migration
of
the
diesel
contamination
onto
the
Premises,
the
violation
of
Section
12(d)
of
the
Act
is
ongoing
and
will
continue
unless
and
until
abated
by
order
of
the
Pollution
Control
Board.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
COUNT
III
Section
2
1(e)
Violation
40.
Paragraphs
I
to
38
are
incorporated
by
reference
as
paragraph
39
hereof.
ANSWER:
BNSF
incorporates
its
answers
to
paragraphs
1-38
as
if
fully
stated
herein.
41.
Section
21(e)
of
the
Act
provides
that:
No
person
shall..
.[d]ispose,
treat,
store
or
abandon
any
waste,
or
transport
any
waste
into
this
State
for
disposal,
treatment,
storage
or
abandonment,
except
at
a
site
or
facility
which
meets
the
requirements
of
this
Act
and
of
regulations
and
standards
thereunder.
ANSWER:
Section
21(e)
of
the
Act
speaks
for
itself.
42.
Section
3.535
of
the
Act
defines
“Waste”
as,
inter
alia,
any
“discarded
material”
resulting
from
industrial
or
commercial
operations.
415
ILCS
5/3.535.
ANSWER:
Section
3.535
of
the
Act
speaks
for
itself.
43.
The
diesel
fuel
and
contaminated
media
on
and
under
the
BNSF
Property
that
the
BNSF
has
abandoned
and
disposed
of
is
Waste
under
the
Act.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
44.
Section
3.1
85
of
the
Act
defines“Disposal”
as
the
discharge,
deposit,
injection,
dumping,
spilling,
leaking
or
placing
of
any
waste
or
hazardous
waste
into
or
on
any
land
or
water
or
into
any
well
so
that
such
waste
or
hazardous
wastemay
enter
the
environment
or
be
emitted
into
the
air
or
discharged
into
any
water,
including
groundwater.
415
ILCS
5/3.185.
ANSWER:
Section
3.185
of
the
Act
speaks
for
itself.
Printed
on
Recycled
Paper
9
1340301v2
45.
By
allowing
the
diesel
fuel
spilled
in 1993
to
remain
on
and
under
the
BNSF
Property
and
the Premises
to
mix
with
soil
and groundwater media,
the
BNSF
has
abandoned
and
disposed
of
said
diesel
fuel
and
diesel
fuel
contaminants.
ANSWER:
BNSF
denies
the
allegations
contained
in
this paragraph.
46.
The
BNSF’s
abandonment
and
disposal
of
the
diesel
fuel
and
diesel
fuel
contaminated media
under
the
BNSF
Property
and
the
Premises
are
knowing
violations
of
the
Act,
as
aptly
demonstrated
by
the BNSF’s
attempt
to
close
the
incident
pursuant
to the
Consent
Decree without
informing
the
Agency
of
the diesel
fuel contamination
on and
under
the
Premises
—
contamination
of
which
the
BNSF
was
fully
aware.
ANSWER:
BNSF
denies
the
allegations
contained
in this
paragraph.
47.
Neither
the
BNSF
Property
nor
the
Premises
are
permitted
by
the
Agency
to
be
waste
disposal
sites
or
facilities
and for
that
reason
and
otherwise
they
do
not
meet
the
requirements of
a
waste
disposal
site
or
facility
under
the
Act
or under
applicable
Illinois
Pollution
Control
Board
regulations.
ANSWER:
BNSF
admits
that
the
BNSF
Property
is not
an
IEPA-permitted
waste
disposal
facility.
BNSF
lacks
knowledge
sufficient
to form
a
belief
as
to
the
truth
or
falsity
of
whether
the
Premises
is
an
IEPA-permitted
waste
disposal
facility.
BNSF
denies
the
remaining
allegations
contained
in
this paragraph.
48.
Such
violation
of Section
21(e)
of
the
Act
is
ongoing
and
will
continue
unless
and
until
abated
by
order
of
the
Pollution
Control
Board.
ANSWER:
BNSF
denies
the
allegations
contained
in
this
paragraph.
WHEREFORE,
BNSF
respectfully
requests
that
the
Board
dismiss
the
Complaint
with
prejudice
and
award
BNSF
its
costs
and
expenses,
and
any
such
other
relief
the Board
deems
appropriate.
Printed
1340301v2
on
Recycled
Paper
10
AFFIRMATIVE
DEFENSES
Affirmative
Defense:
Statute
of
Limitations.
I.
Complainant
admits
in
its
Complaint
that
“[o]n
or
about
late
October
or
November,
2000,
Indian
Creek
excavated
a
small
portion
of
a
building
floor
on
the
Premises
...“
and
“[d]uring
the
excavation,an
odor
was
noted
and
free
product
and
apparently
contaminated
soil
and
groundwater
were
observed.”
(Compl.
¶11
12-14).
2.
Shortly,
thereafter,
upon
information
and
belief,
Indian
Creek
identified
the
contamination
as
diesel
fuel.
3.
Indian
Creek
notified
BNSF
that
it
had
identified
petroleum
contamination
purportedly
resulting
from
the
1993
accident
in
late
2000
or
early
2001.
4.
In
that
same
time
frame,
BNSF
removed
soil
from
the
Premises.
5.
Indian
Creek
did
not
file
the
instant
action
until
December
4,
2006,
more
than
5
years
after
the
date
that
it
first
discovered
the
contamination
and
formed
its
opinion
that
BNSF
was
at
fault.
6.
The
Kane
County
lawsuit
referenced
by
Indian
Creek
was
dismissed
with
leave
to
reinstate,
which
order
has
been
extended
a
number
of
times.
7.
Currently,
the
Kane
County
lawsuit
may
be
reinstated
by
Indian
Creek
prior
to
November
23,
2009.
8.
Indian
Creek
has
not
reinstated
the
Kane
County
lawsuit.
Whereas,
BNSF
requests
that
the
Board
dismiss
this
Complaint
with
prejudice
for
failure
to
comply
with
the
applicable
statute
of
limitations,
735
ILCS
5/13-205,
and
award
BNSF
its
costs
and
expenses,
and
any
such
other
relief
the
Board
deems
appropriate.
Printed
on
Recycled
Paper
11
134030
1v2
Respectfiully
Submitted,
BNSF
RAILWAY
COMPANY
By:___________
One
of
Its
Attorneys
Robert
M.
Baratta,
Jr.
FREEBORN
&
PETERS
LLP
311
South Wacker
Drive
Suite
3000
Chicago, Illinois
60606
(312)
360-6000
— telephone
(312)
360-6597
-
facsimile
Printed
134030
1v2
on
Recycled
Paper
12