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,
vs.
THE.BURLINGTON'NORTHERN
AND SANTA FE
RAILWAY COMPANY, a Delaware Corporation,
Respondent.
TO: Glenn C. Sechen
Schain, Burney, Ross Citron, Ltd .
222 N. LaSalle Street, Suite 1900
Chicago, Illinois 60601
PLEASE TAKE NOTICE
that I have today filed with
Illinois Pollution Control Board Respondent's Motion For Lea
Brief
in Support of its Motion to Dismiss, a copy of which is
note that you may be required to attend a hearing at a date set by the Board
.
DATE : February 21, 2007
Weston W. Marsh
Robert M. Baratta, Jr.
James M. Witz
FREEBORN & PETERS LLP
311 South Wacker Drive
Suite 3000
Chicago, Illinois 60606
(312) 360-6000
- telephone
(312) 360-6597 - facsimile
PRINTED ON RECYCLED PAPER
1256901v2
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
AERK'S OFFICE
PCB- 07-44
Citizen's Enforcement
Complainant,
)
§21(e), §12(a), §12(d)
NOTICE OF FILING
By
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One of Its Attorneys
FEB 2 1 2007
STATE OF ILLINOIS
Pollution Control Board
SUBSCRIBED AND SWORN TO
BEFORE ME THIS 21
51 DAY OF
FE
UAR 2007
OFFICIAL SEAL
PAULA M KRAHN
NOTARY PUBLIC-STATE OF ILLINOIS
MY COWSSION E)MSA623NS
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1256901v2
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served Respondent's Motion
For Leave to File
Instanter its Reply Brief in Support of its Motion to
Dismiss by depositing the same in the
U.S
. Mail box at 311 South Wacker Drive, Chicago, Illinois before 5 :00 p.m
. on February 21,
2007, postage prepaid and addressed to :
Glenn C. Sechen
Schain, Burney, Ross Citron, Ltd .
222 N . LaSalle Street, Suite 1900
Chicago, Illinois 60601
f
100000
X
f %
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
INDIAN CREEK DEVELOPMENT COMPANY, )
R E RKE J ?
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, )
Complainant,
vs.
Respondent .
FEB 21 2007
STATE OF ILLINOIS
pollution Control Board
PCB- 07-44
Citizen's Enforcement
§21(e), §12(a), §12(d)
RESPONDENT'S MOTION FOR LEAVE TO FILE INSTANTER
ITS REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS
The BNSF Railway Company ("BNSF"), by and through its attorneys, moves this Board
pursuant to the Board's General Rules, 111
. Admin
. Code tit. 35, § 101 .500(e), for leave to file
instanter the attached Respondent's Reply Brief in Support of Its Motion to Dismiss
. In support
of this motion, BNSF states as follows
:
I . In its response brief, complainant refers to facts outside of the complaint and
wrongly implies that BNSF has undertaken little, if any, response activities with respect to the
investigation and remediation of complainant's property
.
2 . For example, on page 2 of its response brief, complainant argues "[h]owever,
simply deafening in the BNSF's silence on what remediation measures have been submitted to
and approved by the Agency regarding ANYTHING on the Indian Creek or even the BNSF's
own property since the entry of the Consent Order
." Response Brief, p . 2.
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3 .
Complainant's repeated references to the claimed inaction on the part of BNSF
completely misrepresent the facts of the matter and materially prejudices BNSF
.
4.
In fact, as described in the attached reply brief and exhibits attached thereto,
BNSF has undertaken very substantial investigation and remediation planning with respect to the
complainant's site
. The reply brief and exhibits attached thereto also firmly establish that the
Illinois Environmental Protection Agency ("IEPA") has actively monitored, reviewed and
overseen these activities, as well as general compliance with the Consent Order
. As discussed in
the reply brief, as recently as February 20, 2007, representatives of the Illinois Attorney
General's Office, IEPA and BNSF met to discuss the remediation plans for complainant's
property developed by BNSF's consultant
.
4.
Complainant's response brief goes well beyond simply rebutting or responding to
the arguments presented by BNSF in its Motion to Dismiss and paints a set of facts that simply
are not true
. It is only fair that BNSF be given the opportunity to respond and set the record
straight .
5
. Additionally, BNSF suggests that the Board request that IEPA file a status report
detailing the response activities BNSF has undertaken at the complainant's property and the
status of IEPA's review of the remediation alternatives submitted by BNSF for complainant's
property
.
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2
WHEREFORE, to avoid the material prejudice to BNSF resulting from complainant's
misleading description of the facts surrounding this matter, BNSF respectfully requests that the
Board grant this motion and deem the attached reply brief filed instanter .
Respectfully submitted,
BNSF RAILWAY COMPANY
Weston W . Marsh
Robert M . Baratta, Jr.
James M. Witz
FREEBORN & PETERS LLP
311 South Wacker Drive
Suite 3000
Chicago, Illinois 60606
(312) 360-6000 - telephone
(312) 360-6597 - facsimile
1289045v1
PRINTED ON RECYCLED PAPER
3
By:
0
.
1%k
et ,
a
One of Its Attorneys
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,
)
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 .
)
RESPONDENT'S REPLY BRIEF
IN
SUPPORT OF ITS MOTION TO DISMISS
INTRODUCTION
The BNSF Railway Company ("BNSF") has diligently pursued investigation and
remediation of any diesel fuel released from its property as a result of the subject train collision
.
Indeed, the subsurface investigation of complainant's property is complete (See Exhibit A to
Affidavit attached hereto) and BNSF has submitted to the Illinois Environmental Protection
Agency ("IEPA")
and
complainant a proposed remediation plan (See Exhibit B to Affidavit
attached hereto) and Draft Pilot Test Study Work Plan (See Exhibit C to Affidavit attached
hereto)
. IEPA has reviewed the plans and recently held a meeting with BNSF on February 20,
2007 to discuss remediation of complainant's property
. (See Affidavit ¶5 attached hereto)
.
Quite simply, both BNSF and IEPA have performed, and continue to perform, their obligations
under the pending Consent Order with respect to complainant's property
.
Complainant, however, has another agenda . Shortly after finding contamination on its
property, complainant sought unreasonable sums from BNSF for access to its property . When it
didn't get what it wanted, complainant denied BNSF access to its property for more than a year .
Then, looking for a lotto-type payout, plaintiff filed a 35-page, eight-count complaint in Kane
County Circuit Court against BNSF and others seeking "in excess of $8,000,000" for bogus
losses (See Exhibit B to Complainant's Response to Motion to Dismiss)
. When complainant
actually had to prove up such losses, it voluntarily dismissed its Kane County lawsuit and paid
the costs incurred by BNSF therein (See Exhibit C to Complaint) .
Of course, all of these facts are by way of background and have little relevance to the
instant motion, which is well supported by the Board rules, Board opinions and common sense
.
The reason BNSF sets forth these facts in only to rebut complainant's strained argument in
response to the motion
. In its response brief, complainant argues "However, simply deafening is
the BNSF's silence on what remediation measures have been submitted to and approved by the
Agency . . .
(Complainant's Brief, p.2) . Complainant's argument is irrelevant to the
undeniable fact that all of the issues raised in this duplicative proceeding were addressed by the
State of Illinois in the Consent Order
. But, given that complainant has raised the issue, it is only
right that BNSF be allowed to set the record straight and provide the Board with a brief
description of the status of the investigation and cleanup of complainant's property
.
As for substance, complainant's brief describes nothing new and provides no legal
support for its argument that its case should not be dismissed . Complainant concedes, as it must,
that this duplicative proceeding addresses the very same party (BNSF), release of diesel fuel,
location and purported statutory violations as those addressed by the State of Illinois in the
Consent Order. Complainant does not argue that the Consent Order inadequately addresses the
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2
investigation and remediation of the contamination
. Complainant does not argue that BNSF has
failed to thoroughly investigate its property or provide a remediation plan to IEPA . Indeed,
complainant plainly states in its Complaint that "the Agency is working to fulfill its role under
the Consent [Order] and to obtain remediation by the BNSF ." (Complaint, ¶21) .
Instead, complainant's sole argument is that the response activities are taking too long,
despite the fact that it claims that it did not identify contamination on it property until 2000 and
refused to allow BNSF access for more than a year. Of course, there is no time exception to the
Board rules regarding duplicative actions, nor is there any legal basis to circumvent the
Consent
Order . Similarly, mere passage of time does not create new statutory violations, as complainant
argues . In fact, in a truly bizarre twist, if the Board were to grant the relief sought by
complainant (e.g., starting over with a new consultant chosen by complainant), the remediation
of complainant's property would undoubtedly take much longer than is now anticipated .
ARGUMENT
I.
In compliance with the Consent Order, BNSF has extensively investigated the
complainant's property and has submitted to IEPA and complainant a plan to
initiate remediation of complainant's property .
On November 2, 2005, BNSF's consultant submitted to IEPA and complainant its
Additional Site Investigation Report ("Report") detailing the extensive subsurface investigation
of complainant's property . (Exhibit A to Affidavit)
. The Report supplemented two previous
reports : a 2002 Phase II Site Investigation and a 2003 Site Investigation Report . IEPA reviewed
and approved the work plan for the additional investigation described in the Report,
which in
total included the installation of at least 26 soil borings and 20 monitoring wells on or adjacent
to
complainant's property .
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3
On April 21, 2006, BNSF's consultant submitted a Remedial Action Plan (Exhibit B to
Affidavit) to IEPA
and complainant detailing BNSF's proposed in situ
remediation plan for
complainant's property . IEPA reviewed the plan and requested a revised plan
. After discussions
with IEPA, on September 7, 2006, BNSF's consultant submitted to IEPA
and complainant a
Draft Pilot Test Study Work Plan (Exhibit C to Affidavit) describing its proposed "pilot-scale
tests that will be performed to allow for selection of
an active remediation technology or
technologies that will be used to recover free-phase petroleum hydrocarbons and remediate
diesel-impacted soil and groundwater
. . . on an adjacent property to the south owned by Indian
Creek Industrial Development
. . . ." The pilot study includes
: (1) an aquifer pump test
; (2) a
two-phase extraction pilot test
; and (3) a chemical oxidation injection pilot test .
IEPA is
reviewing these reports and held a meeting on February 20, 2007 with BNSF to discuss them in
more detail. 1
Complainant's brief makes it appear as if BNSF has done nothing to investigate and
address the contamination on complainant's property
. Nothing could be further from the truth .
The attached reports establish the very substantial work that BNSF has undertaken on the
complainant's property
. The reports also establish IEPA's active engagement in this matter, as
contemplated by the Consent Order .
BNSF is not attempting to "sidestep its responsibility," as
complainant falsely accuses, but is actively working with IEPA to address these issues .
II.
By dismissing this proceeding, the Board
would not circumvent its role under the
Illinois Environmental Protection Act .
Complainant seeks the Board's involvement because "[t]he drafter of the Act and the
Legislature recognized that the Agency is well intentioned but the Agency in particular and State
review
' BNSF
and
suggests
the proposed
that the
remedial
Board request
activities
thatat
IEPA
complainant's
file a status
propertyreport
.
in this matter detailing the status
of
their
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4
government in general is understaffed, overburdened and too frequently led to pursue seemingly
more immediate pressing issues
." (Complainant's Brief, p
.7) But Complainant has not alleged
in its complaint that BNSF has violated the Consent Order, or that IEPA has not fulfilled its role
under the Consent Order
. As previously noted, complainant affirmatively alleges the contrary,
stating that IEPA "is working to fulfill its role under the Consent [Order]
." (Complaint ¶21) .
Complainant's argument for Board involvement thus falls flat
. As complainant concedes,
IEPA is fulfilling its role under the Consent Order and is not "pursu[ing] more immediately
pressing issues," as Professor Currie feared may happen in certain instances
. Indeed, just the
opposite is true
. The State of Illinois has actively engaged BNSF since the date of the train
collision, negotiated a detailed and thorough Consent Order and monitored compliance through
the IEPA
. Indeed, the Consent Order specifically states
:
B.
Ob'ective
The objective of this Consent Order is to have an enforceable order which
will ensure the implementation of the terms hereof, to obtain remediation of the
site as is economically reasonable and technologically feasible, to assure the
protection of public health, safety, welfare and the environment, and compliance
with the Act, Board's Water Pollution Regulations, the Federal Clean Water Act
and any applicable rules and regulations promulgated thereunder
.
(See Exhibit A to Complaint, p
.8) Clearly, Board involvement would serve no reasonable
purpose, duplicating the actions already pursued by the State and addressed in the Consent
Order.
To add to the confusion, complainant requests the following relief in its complaint
: "That
the Board request the Agency to investigate the facts and violations set forth herein pursuant to
Section 30 of the Act and thereafter name the Agency as a party in interest, pursuant to 35 Ill
.
Adm. Code 101 .404 ad 103
.202, to coordinate the Agency's duties and efforts pursuant to the
Consent [Order]." (Complaint,
p.9).
But IEPA already is actively and closely involved in
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5
monitoring compliance with the Consent Order
. Complainant concedes as much when it alleges
in its complaint that "the Agency is working to fulfill its role under the Consent [Order] and to
obtain remediation by the BNSF
." (Complaint ¶21) . Complaint's requested relief is unnecessary
and redundant .
III.
The cases cited by BNSF are directly
on point and clearly establish that this
admittedly duplicative action should be dismissed .
The case of
Lefton Iron and Metal Co . v. Moss American Corp
., PCB 87-191, 1990 WL
263946 (Nov . 29, 1990) is right on point
. In Lefton, the complainant, Lefton, Iron and Metal
Co., brought a citizen's enforcement action against respondent Moss American Corp
. and its
affiliates alleging violations of the Act
. As in this case, the respondent Moss American Corp .
was a defendant in a state court case brought by the Illinois Attorney General's Office
. Like
BNSF and the State, the respondent and the Illinois Attorney General had entered into a consent
decree in which respondent undertook responsibility for the cleanup and agreed to pay a civil
penalty. In dismissing the Board action, the Board concluded that "[d]ue to the existence of the
consent decree, the question of whether [respondent] has violated Sections 12 and 21 of the Act
is moot
. [Respondent] has undertaken full liability and, as such, the purpose of the Act has been
achieved." Id. at 3
. The Board further found that "the presence of only one adjudicator would
alleviate the possibility of two dissimilar rulings and future litigation
." Id. at 4. The Board
finally concluded that "[i]t
is the Board's position that in instances where the Board has
concurrent jurisdiction with the Circuit Court, substantially similar matters previously brought
before the Circuit Court can similarly be dismissed by the Board
." Id. at 4 citing Northern
Illinois Anglers Assn. v. City ofKankakee, PCB 88-183 (January 5, 1989) at 5
.
Complainant attempts to distinguish this case based on the unconvincing argument that
the Board dismissed the complaint in
Lefton solely on the basis that the Board determined that
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6
the Circuit Court "was in a much better position to consider the equitable issues because of the
consent decree entered in that issue
." (Complainant's Brief, p. 8). Even a cursory reading of the
Lefton
decision establishes that this was not the primary reason that the Board dismissed the
complaint
. But, even if that were true, this is not a distinguishing fact, but a substantially similar
one. In this matter, like Lefton, the Circuit Court entered a Consent Order granting substantial
equitable relief Undoubtedly, like in Lefton, the Circuit Court should be allowed to interpret and
enforce the Consent Order and, like in Lefton, is in a much better position than the Board to do
so.
That said, the main reason the Board dismissed the complaint in Lefton
was because the
Consent prder rendered the complaint before the Board moot . The Board found that the
respondent had "undertaken full liability and, as such, the purpose of the Act has been achieved ."
Lefton at 3. The same is true here . BNSF has taken responsibility under the Consent Order and
is working with IEPA to remediate complainant's site - the very relief sought by complainant .
Complainant does not allege that BNSF has failed to fully investigate its site or that BNSF and
IEPA have failed to work towards a remediation plan . Indeed, complainant concedes, as
it must,
that IEPA is fulfilling its obligations under the Consent Order
. Therefore, any action by Board in
response to the complaint would
: (1) be redundant in that such relief already has been addressed
in the Consent Order; or (2) contradict the obligations in the Consent Order .
Additionally, the other cases cited by BNSF fully support dismissal of the complaint and
complainant's attempt to distinguish them is misplaced
.
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7
CONCLUSION
Complainant asks the Board to ignore that fact that the very violations and environmental
conditions alleged in the Complaint have already been addressed by the Illinois Attorney General
and the State's Attorney of Kane County in the Kane County lawsuit . The Consent Order
resulting from that lawsuit governs the response action with respect to complainant's property
and IEPA is actively involved in monitoring compliance with the Consent Order .
For these
reasons, the Complaint should be dismissed .
Respectfully submitted,
BNSF RAILWAY COMPANY
B
Weston W . Marsh
Robert M . Baratta, Jr .
James M. Witz
FREEBORN & PETERS LLP
311 South Wacker Drive
Suite 3000
Chicago, Illinois 60606
(312) 360-6000 - telephone
(312) 360-6597-facsimile
1289045v1
PRMTED ON RECYCLED PAPER
8
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
INDIAN CREEK DEVELOPMENT COMPANY, )
an Illinois partnership, individually as
)
beneficiary underr 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 .
)
AFFIDAVIT
I, Robert M . Baratta, Jr.,
being first duly sworn under oath, hereby depose and state as follows
:
I .
I am an attorney with Freeborn & Peters LLP and have represented BNSF with
respect to the matters at issue in this proceeding and
ave pe;~pW;Q1'4 MPdge of, the matters
"'""
discussed in this affidavit .
A'
2.
Exhibit A attached hereto is a true and correct copy of the Additional Site
Investigation Report prepared by BNSF's consultant and submitted to complainant and IEPA
.
3 .
Exhibit B attached hereto is a true and correct copy of the Remedial Action Plan
prepared by BNSF's consultant and submitted to complainant and IEPA
.
4.
Exhibit C attached hereto is a true and correct copy of the Draft Pilot Test Study
Work Plan prepared by BNSF's consultant and submitted to complainant and IEPA
.
5.
Representatives of IEPA, the Illinois Attorney General's Office and BNSF met on
February 20, 2007 to discuss, among other things, the reports identified in paragraphs 3 and 4
above and remdiation of complainant's property .
FURTHER AFFIANT SAYETH NOT .
Subscrib and Sworn to before
Me this ay of February, 2007
//..J(
Notary Public
OFFICIAL SEAL
PAULA M KRAHN
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES
:0623AB
Robert M ..aratta, r
