Lisa Madigan
,vrI ORNEY GENh1RN,
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R . Thompson Center, Ste . 11-500
100 West Randolph
Chicago, Illinois 60601
Dear Clerk Gunn :
Enclosed for filing please find the original and ten copies of a Notice of Filing and Answer
to Affirmative Defenses in regard to the above-captioned matter . Please file the original and return
a file-stamped copy to me in the enclosed, self-addressed envelope .
Thank you for your cooperation and consideration .
KLG/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090
•
TTY
. (217) 785-2771 • Fax : (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 •
TTY (312) 814-3374 • Fax : (312) 814-3806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
November 29, 2006
Re:
People v. CSX Transportation, Inc .
PCB No. 07-16
isten Laughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
RECEIVEDCLERK'S
OFFICE
DE
0 1 2006
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'SEIV
IED
PEOPLE OF THE STATE OF
)
ILLINOIS,
DEC 0
1 2006
STATE OF ILLINOIS
Complainant,
Pollution Control Board
)
VS .
)
PCB No
. 07-16
(Enforcement)
CSX TRANSPORTATION, INC
., a
)
Virginia corporation,
)
Respondent
.
)
NOTICE OF FILING
To :
David L . Rieser
McQuire Woods, LLP
77 West Wacker Drive
Suite 4100
Chicago, IL 60601
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, an ANSWER TO AFFIRMATIVE DEFENSES, a copy of which
is attached hereto and herewith served upon you
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : November 29, 2006
1
BY
MATTHEW J
. DUNN, Chief
Environmental
orcement/Asbe os
Litigation
'1'/
Di
orb
/ KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on November 29, 2006, send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy
of the following instruments entitled NOTICE OF FILING and ANSWER TO AFFIRMATIVE
DEFENSES
To:
David L
. Rieser
McQuire Woods, LLP
77 West Wacker Drive
Suite 4100
Chicago, IL 60601
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s) :
To :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R
. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to
:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
risten Laughridge Gale
Assistant Attorney General
This filing is submitted on recycled paper
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FRE
CLERK'SS
C
O VIE
D
PEOPLE OF THE STATE OF ILLINOIS, )
DES, U ) 2006
STAT
Complainant,
)
Pollution
ControlBoad
vs.
)
No . PCB 07-16
(Enforcement)
CSX TRANSPORTATION, INC ., a
)
Virginia corporation,
)
Respondent .
)
ANSWER TO AFFIRMATIVE DEFENSES
NOW COMES Complainant, People of the State of Illinois, with its Answer to Affirmative
Defenses, and states as follows :
1 .
The People admit that the Illinois Attorney General's Office and Illinois EPA met
with CSX Transportation, Inc
. ("CSX") prior to the filing of the complaint and that CSX submitted
documents demonstrating that the release was addressed . The remaining allegations state a
legal conclusion and no answer is warranted .
2.
The People admit that the Illinois Attorney General's Office and Illinois EPA met
with CSX Transportation, Inc
. ("CSX") prior to the filing of the complaint and that CSX submitted
documents demonstrating that the release was addressed . The remaining allegations state a
legal conclusion and no answer is warranted .
3 .
This claim misstates the Complainant's allegations of violation . The
Complainant alleges that CSX violated Sections 12(a), 12(d), and 21 (a) of the Illinois
Environmental Protection Act ("Act"), 415 ILCS 5/12(a), 12(d), 21(a) . The allegations that CSX
failed to respond to Illinois EPA communications goes to the determination of a penalty
1
pursuant to Section 42(h) of the Act, 415 ILLS 5/42(h), specifically as to the due diligence to
comply and self disclosure, 415 ILCS 5/42(h)(2), (h)(6).
4 .
This contention states a legal conclusion and no answer is warranted
. However,
the Board has jurisdiction to penalize CSX and the State is not federally preempted from
enforcing the Act
. The Fifth District Court found in People v
. Conrail Corp ., 245 III .App .3d 167,
613 N .E
.2d 784, (5th Dist
.1993), that an injunction ordering the railroad to cease transferring
waste at the rail yard was not federally preempted
. The Court, citing Chicago
& North Western
Transportation Co . v. Kalo Brick & Tile Co .,
450 U .S . 311, 317, 101 S .Ct
. 1124, 1130 (1981),
stated that "pre-emption of state law by federal statute or regulation is not favored 'in the
absence of persuasive reasons-either that the nature of the regulated subject matter permits no
other conclusion, or that the Congress has unmistakably so ordained
.' [Citations .] . ..
The
doctrine does not and could not in our federal system withdraw from the States either the
'power to regulate where the activity regulated [is] a merely peripheral concern' of federal law,
[citation],
. . ." Conrail Corp., 245 III .App .3d at 182, 613 N
.E .2d at 794 (III .App
. 5 Dist .,1993) . In
fact, the State maintains a right to regulate railroads as to local hazards
. See Phillips Petroleum
Co. V
. Illinois Environmental Protection Agency,
72 III .App.3d 217, 390 N .E .2d 620 (2nd Dist
.
1979)
. Furthermore, a high threshold must be met if a state law is to be preempted from
conflicting with the purposes of a federal act, and is "limited to state laws which impose
prohibitions or obligations which are in direct contradiction to Congress' primary objectives, as
conveyed with clarity in the federal legislation ." Gade v
. National Solid Wastes Management
Assn., 505 U .S . 88, 98, 112 S .Ct
. 2374, 2389 (1992) . Neither the Federal Railroad Safety Act,
49 U .S .C
. § 20101 et seq .,
nor the Interstate Commerce Commission Termination Act, 49
U .S
.C
. § 10101, states that the States are preempted for seeking penalties for violation of State
environmental laws . The State's enforcement of the Environmental Protection Act does not
2
directly conflict with either of the Federal Acts and does not impede the federal railroad safety
laws and interstate commerce
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the
State of Illinois
500 South Second Street
Springfield, Illinois 62706
217/782-9 31
Dated : 1 / Z
MATTHEW J /DUNN,
Chief
Environ e t81 Enforcement/Asbestos
gation I
.wision
ISTEN LAUGHRIDGE GALE
vironmental Bureau
Assistant Attorney General
3
