PRINTED ON RECYCLED PAPER
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.
)
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: See Attached Service List
PLEASE TAKE NOTICE
that on August 13, 2009, the attached document,
Complainant’s Motion To Strike Burlington Northern and Santa Fe’s Affirmative
Defense,
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 13
th
day of August,
2009, with proper postage affixed.
Indian Creek Development Company and
Chicago Land Trust Company t/u/t 3291,
dated December 15, 1981
By
Glenn C. Sechen
One of Its Attorneys
F:\GCS\Indian Creek Development JB Industries\PCB Enforcement Action\Pleadings, Filed\NOF 8-13-09.doc
Electronic Filing - Received, Clerk's Office, August 13, 2009
PRINTED ON RECYCLED PAPER
2
Service List
INDIAN CREEK DEVELOPMENT COMPANY,
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.
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
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
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
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
Nancy Tikalsky
Environmental Enforcement /Asbestos Litigation
Division
100 W. Randolph Street
Chicago, Illinois 60601
312-814-6986
312-814-2347 - 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
Environmental Bureau of the
Illinois Attorney General
69 West Washington Street
Suite 1800
Chicago, Illinois 60602
312-814-0660
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)
F:\PCB Enforcement Action\Service List.doc
Electronic Filing - Received, Clerk's Office, August 13, 2009
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,
)
PCB- 07-44
)
Citizen’s Enforcement
Complainant,
)
§21(e), §12(a), §12(d)
)
vs.
)
)
THE BURLINGTON NORTHERN AND SANTA FE
)
RAILWAY COMPANY, a Delaware Corporation,
)
)
Respondent.
)
COMPLAINANT’S MOTION TO STRIKE BURLINGTON
NORTHERN AND SANTA FE’S AFFIRMATVE DEFENSE
Complainant, Indian Creek Development Company, and the Chicago Title and
Trust Company as trustee under trust 3291, dated December 15, 1981, (collectively
“Indian Creek”), moves to strike the single affirmative defense pled by the Respondent,
Burlington Northern and Santa Railway Company (“BNSF”) filed. In support thereof,
Indian Creek states as follows:
INTRODUCTION
This matter involves a release of diesel fuel on January 20, 1993 on the BNSF
Property which is owned and operated by the BNSF. The Complaint alleges that
property owned by Indian Creek (“Indian Creek Property”) continues to receive soil and
groundwater contamination flowing from the BNSF Property approaching seventeen
(17) years after the release (Complaint, Paragraphs 11, 17, 24, 37). In 1996,
prosecutors filed a civil enforcement action in Circuit Court, CH KA 95 0527 and
obtained a consent decree against the BNSF which expressly precludes enforcement
by third parties such as Indian Creek (the Consent Order is attached to the Complaint
Electronic Filing - Received, Clerk's Office, August 13, 2009
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2
as Exhibit A), Pages 2, 30 at Paragraph K). The Consent Order acknowledges that the
BNSF has not fully remediated the diesel fuel contamination on the BNSF Property and
requires the BNSF to identify potential pathways of migration of the diesel fuel,
contaminated soil and groundwater along with the identification of potentially affected
human and environmental receptors. (Consent Order (Complaint Exhibit A), Page 6 at
Paragraphs 2(3) 5). In its Motion to Dismiss, claiming that this action is duplicative of
the prior consent order, the BNSF stated:
Under the Consent Decree, BNSF, among other things, assumed full
responsibility for the cleanup, paid a civil penalty and agreed to cease and
desist from future violations of the Act. (Respondent’s Memorandum in
Support of its Motion to Dismiss (“Memo”) at 5.)
Despite having “assumed full responsibility for the cleanup” the Indian Creek
Property remains contaminated.
ARGUMENT
On June 18, 2009 the Board struck the BNSF’s previously filed affirmative
defenses. On July 20, 2009 the BNSF fled its Amended Answer including one
affirmative defense, the statute of limitations. Paragraphs 6 through 8 of its affirmative
defense state:
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.
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); Richco Plastic Co.
,
supra.
The facts establishing an affirmative defense must be pled with the same degree of
Electronic Filing - Received, Clerk's Office, August 13, 2009
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3
specificity as required by a plaintiff to establish a cause of action. International Insurance Co. v.
Sargent and Lundy, 242 Ill. App. 3d 614, 630, 609 N.E.2d 842, 853 (1st Dist. 1993), citing
Kermeen v. City of Peoria
, 65 Ill. App. 3d 969, 973, 382 N.E.2d 1374 (3rd Dist. 1978). 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 Ill. Adm. Code
103.204(d). 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), citing People v. Community Landfill Co., PCB 97-193,
slip op. at 3 (Aug. 6, 1998).
Illinois is a fact pleading jurisdiction, Knox College v. Celotex Corp., 88 Ill.2d 407,
430 N.E.2d 976 (1981); Richco Plastic Co. v. IMS Co., 288 Ill. App. 3d 782, 681 N.E.2d
56 (1
st
Dist. 1997). 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.
Id.
The BNSF’s Amended Answer pleads on nexus between the allegations
paragraphs 6 through 8 and the statute of limitations. It is completely vague and wholly
unclear what impact on the statute of limitations defense the facts alleged in paragraphs
6 through 8 is claimed to have. It is complete guesswork. These paragraphs do not set
forth anything, except perhaps evidentiary facts. Perhaps these paragraphs are
intended as some sort of premature response to Indian Creeks expected answer to the
statute of limitations defense. Indian Creek will answer, among other things, that this
case is a refiling of Kane County case number 04 L 607 filed on or about December 7,
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4
2004. At most paragraphs 6 through 8 are evidentiary facts and not ultimate facts as
are required to be pled. Either way, they are vague, unclear, improper surplusage and
should be stricken. Board of Education of Kankakee School District v. Kankakee
Federation of Teachers, 46 Ill.2d 439, 264 N.E.2d 18 (1970).
At this point in the pleading chain paragraphs 6 through 8 do not support the
BNSF’s statute of limitations defense. Their relevance is mere conjecture and should be
stricken as surplusage for that reason as well. The striking of these paragraphs is not
hyper technical application of the law of pleadings. The pleadings determine the scope
of admissible evidence. Paragraphs 6 through 8 are a mere wild card. Striking such
surplusage prevents future claims that the surplus language means something or
constitutes some sort of defense or support for a defense that cannot presently
imagined by either party much less properly pled.
WHEREFORE, Complainant, Indian Creek, respectfully requests that the
Pollution Control Board enter an order striking Respondent’s affirmative defenses and
grant Indian Creek such further and other relief as this Board deems just and proper.
Respectfully submitted,
Indian Creek Development Company
By
Glenn C. Sechen
One of Its Attorneys
Schain, Burney, Ross, & Citron, Ltd.
Glenn C. Sechen, Of Counsel
13909 Laque Drive
Cedar Lake, Indiana
(312) 550-9220
sechlaw@yahoo.com
F\PCB Enforcement Action\Pleadings, Filed\M Strike Affirmative Defenses 2 FNL.doc
Electronic Filing - Received, Clerk's Office, August 13, 2009
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