DATED :
February
cc-
, 2007
David L . Rieser
Jeremy R
. Hojnicki
MCGUIREWOODS LLP
77 West Wacker Drive, Suite 4100
Chicago, Illinois 60601
(312) 849-8100
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
RECEIVED
CLERK'S
OFFICE
Complainant,
)
FEB 2 6 2007
STATE OF ILLINOIS
V .
)
PCB 07-16
Pollution Control Board
(Enforcement)
CSX TRANSPORTATION, INC
.,
)
a Virginia corporation,
)
Respondent .
NOTICE OF FILING
To :
Kristen Laughridge Gale
Illinois Corporation Service Co .
Assistant Attorney General
801 Adlai Stevenson Drive
Environmental Bureau
Springfield, IL 62701
Illinois Attorney General's Office
188 West Randolph, 20th Floor
Chicago, IL 60601
Carol Webb, Hearing Officer
Dorothy M . Gunn
Illinois Pollution Control Board
Illinois Pollution Control Board
1021 North Grand Avenue East
James R . Thompson Center
Post Office Box 19274
100 West Randolph Street, Suite 11-500
Springfield, IL 62794-9274
Chicago, IL 60601
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the
Pollution Control Board Respondent's Motion for Summary Judgment on behalf of CSX
Transportation, Inc . in the above-titled matter
. A copy is hereby served upon you
.
By:
SX TRANSP F T kTIONJ, INC
.
1
1i
n
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.
CSX TRANSPORTATION, INC.,
a Virginia corporation,
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
RECEBVE®CLERK'S
OFFICE
FEB 2
6
2007
STATE OF ILLINOIS
PCB 07-16
Pollution Control Board
(Enforcement)
Respondent .
RESPONDENT CSXT'S MOTION FOR SUMMARY JUDGMENT
Respondent, CSX Transportation, Inc . ("CSXT"), by and through its attorneys,
McGuireWoods LLP, and pursuant to 35 Ill . Admin. Code Section 101 .516 respectfully
moves for summary judgment on all counts alleged by the Complainant, People of the
State of Illinois.
On September 12, 2006, the Complainant filed a three-count Complaint against
CSXT alleging violations of the Illinois Environmental Protection Act ("Act")
(415 ILCS
5/1 et. seq.). Specifically, the People allege in Count I that CSXT violated Section 12(a)
of the Act (415 ILCS 5/12(a)) by causing or allowing water pollution ; in Count II the
People allege that CSXT violated Section 12(d) of the Act (415 ILCS 5/12(d)) by
creating a water pollution hazard ; and in Count III the People allege that CSXT violated
Section 21(a) of the Act (415 ILCS 21(a)) by causing or allowing open dumping . As a
matter of law, none of the People's claims against CSXT satisfies the legal requirements
of the alleged causes of action
. There are no disputed material facts pertinent to this
motion. Accordingly, the Board should enter summary judgment in CSXT's favor on all
three counts alleged in the Complaint .
STATEMENT OF UNDISPUTED FACTS
1
. On July 9, 2004, approximately 400-500 gallons of diesel fuel was accidentally
released from a diesel fuel engine at the Rose Lake Yard CSXT facility located at
3900 Rose Lake Yard Road, East St
. Louis, St. Clair County,
Illinois . See
Complaint at p . 2.
2
. On the same day, July 9, 2004, CSXT retained the emergency response
environmental contractor Hulcher Professional Services ("HPS")
of Centerville,
Illinois to conduct emergency response and environmental remediation activities
at the site
. The initial response activities included the removal of soil with a
backhoe, the placement of absorbent pads and booms, the installation of a
drainage channel and the application of a bioremediation process to mitigate and
immediately rectify the release. See
Affidavit of John Broadus which is attached
herewith and incorporated herein
; see also Environmental Remediation Report
which is attached herewith and incorporated herein as Exhibit A at p
. 2-3 .
3
. On September 29, 2004, HPS prepared
a Scope of Work
to propose further
remediation at the release area . A copy of the
Scope of Work was submitted to the
Illinois Environmental Protection Agency ("IEPA")
. See
Affidavit of John
Broadus
. The HPS Scope of Work is
attached herewith and incorporated herein as
Exhibit B .
4
. On October 19 and 20, 2004, HPS returned to the site to implement the
remediation activities described in the
Scope of Work.
Specifically, HPS
performed additional soil excavation, flushed the site with a bioremediation
2
mixture and collected soil samples . See Affidavit of John Broadus ; see also
Exhibit A at p . 3-4 .
5 . On December 21, 2004, HPS prepared an Environmental Remediation Report
.
The report documented the extent of the emergency response and remediation
activities performed at the site by HPS . A copy of the Environmental
Remediation Report was submitted to the IEPA
. See Affidavit of John Broadus ;
see also Exhibit A.
6. In January, 2005,
CSXT retained the environmental contractor Arcadis to perform
an additional site investigation and confirm that the emergency response and
remediation activities performed by HPS successfully remediated the site
. See
Affidavit of Mr. Sid Glenn which is attached herewith and incorporated herein,
see also Response to Violation Notice, L-2005-01001
which is attached herewith
and incorporated herein as Exhibit C at p. 1-7 ; Closure Request and Response to
Violation Notice, L-2005-01001,
which is attached herewith and incorporated
herein as Exhibit D at p. 1-7 .
7. On August 2, 2005,
Arcadis conducted a site investigation by collecting soil
borings and installing monitoring wells at the impacted site
. Five soil samples
were analyzed for benzene, toluene, ethylbenzene and total xylenes
("BTEX"),
methyl tertiary butly ether ("MTBE"),
and polynuclear aromatic hydrocarbons
("PAHs"). Laboratory analytical data indicated that all soil samples collected
were below the Tiered Approach to
Corrective Action ("TACO")
Industrial/Commercial Tier I Remediation Objectives .
See Exhibit C at p . 5 ; see
also
Exhibit D at p.5 .
3
8. On October
28, 2005, Arcadis conducted a groundwater
sampling event.
Groundwater samples collected at the site were analyzed for TACO contaminants
.
Analytical data indicated that nearly all of groundwater samples collected by
Arcadis at the site were
below the laboratory detection limits for TACO
contaminants
. Only a few groundwater samples detected extremely low levels of
TACO contaminants and all of these samples were
below the TACO Tier I Class
II groundwater Remediation Objectives . See Exhibit C at p
. 5-6 and at Table 3 ;
see also Exhibit D at p
. 5-6 and at Table 3
9
. On February 23, 2006, prior to the filing of this Complaint, representatives of
CSXT and Arcadis met with representatives of the Illinois Attorney General's
Office and the IEPA
. During the February 23, 2006 meeting, Arcadis and CSXT
advised the Illinois Attorney General's Office and the IEPA that the release had
been completely addressed and that there are no violations of the Act
. At this
meeting, representatives from the IEPA requested that additional soil samples be
taken at the site to verify that state cleanup standards had been achieved during
the initial site remediation
. See Affidavit of Mr . Sid Glenn
.
10
. On April 14, 2006, the Illinois Attorney General's Office sent a letter to CSXT
regarding IEPA's request for additional soil sampling at the site
. The letter
requested that samples be collected in a specific area identified as S4 in the HPS
Environmental Remediation Report
. The letter further stated that "two (2) soil
samples collected from the original location of S4 should be sufficient to
investigate whether contamination exists in that area
." The April 14, 2006 letter
is attached herewith and incorporated herein as Exhibit E
.
4
11 . On May 9, 2006, Arcadis conducted an additional soil investigation at the site
.
Arcadis collected two soil samples, SB-6 and SB-7, in the S4 location referenced
in the letter sent by the Illinois Attorney General's Office . The analytical results
from these two samples were determined to
be below the TACO
Industrial/Commercial Tier I Remediation Objectives . See Exhibit C at p . 5-7;
see also Exhibit D at p . 5-7 .
12. On June 1, 2006, on behalf of CSXT, Arcadis submitted a report to IEPA titled
Closure Request and Response to Violation Notice, L-2005-01001 . The report
summarized the emergency response and remediation activities performed by
HPS and the additional soil and groundwater investigation performed by Arcadis
.
The report reiterated that the site had been fully remediated and that all soil and
groundwater samples collected at the site were below the TACO standards. See
Exhibit C at p
. 1-7
; see also
Exhibit D at p . 1-7 .
13 . On July 12, 2006, during a telephone conversation between Ms
. Kathy Vieregge
of the IEPA and Mr
. Kevin Peterbus of Arcadis, Ms . Vieregge advised Mr.
Peterbus that "she indicated to the Attorney General's Office that the incident
number had appeared to have come back into compliance
." See Affidavit of Mr .
Kevin Peterbus which is attached herewith and incorporated herein
. A telephone
log of this conversation is attached herewith and incorporated herein as Exhibit F
.
14 . On September 12, 2006, the People filed the pending action against CSXT with
the Board.
5
INTRODUCTION
This case involves an accidental release of a small amount diesel fuel in
an
industrial rail yard which was immediately, voluntarily and successfully cleaned up by
CSXT.
On July 9, 2004, approximately 400-500 gallons of diesel fuel was accidentally
released from a diesel fuel engine at a CSXT rail yard in East St
. Louis, Illinois. CSXT
immediately retained the emergency response contractor HPS to perform environmental
site remediation the very same day of the accidental release
. HPS immediately removed
all visible evidence of any soil contamination and then returned to the site in October,
2004 to perform additional site remediation activities to ensure that the site was
successfully cleaned up .
In January, 2005, CSXT retained the environmental contractor Arcadis to follow
up on the work performed by HPS . Arcadis collected and analyzed soil and groundwater
samples at the site in the area of the accidental release . All soil samples analyzed by
Arcadis were below
TACO Industrial/Commercial Tier I Remediation Objectives .
Additionally, all groundwater samples analyzed by Arcadis were either
below laboratory
detection limits for TACO contaminants or
below
TACO Tier I Class II groundwater
Remediation Objectives .
Thus, Arcadis independently verified that the remediation
performed by HPS was complete .
In February, 2006, prior to the filing of this Complaint, CSXT met with
representatives of the IEPA and the Illinois Attorney General's Office
. CSXT advised
the IEPA and the Illinois Attorney General's Office that the remediation performed at the
site was successful .
The Illinois Attorney General's Office and the IEPA, however,
6
requested that CSXT collect two additional soil samples to confirm that there was no
longer any contamination present at the site as a result of the accidental release . CSXT
complied with this request and directed Arcadis to collect two additional soil samples in
the location specified by the Illinois Attorney General's Office
. These samples were
determined to be below TACO Industrial/Commercial Tier I Remediation Objectives
thereby again verifying that the accidental release was successfully cleaned up . CSXT
shared the results demonstrating that the remediation was complete with the IEPA and
the Illinois Attorney General's Office before the filing of this Compliant
.
Despite the successful voluntary site remediation performed by CSXT, the Illinois
Attorney General's Office filed the instant Compliant against CSXT
. The Complaint
includes a demand civil penalties and a cease and desist order against CSXT
. As a matter
of law, all three counts in the People's Complaint have no legal basis and accordingly
CSXT respectfully requests that the Board enter summary judgment in favor of CSXT as
to all three counts in the People's Complaint .
LEGAL STANDARDS
This motion seeks entry of summary judgment
. According to the Board's
regulations, "[A]ny time after the opposing party has appeared
. . .a party may move the
Board for summary judgment for all or any part of the relief." 35 Ill . Admin
. Code
Section 101 .516
. Under the Illinois Code of Civil Procedure set forth at 735 ILCS 5/2-
1005, summary judgment is properly granted where the record on file "together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law ." See also, People v
. Stonehendge, Inc.,
288 Ill .App.3d 318, 680 N .E .2d 497 (2"d
Dist. 1997) . If the necessary factual issues in
7
dispute do not genuinely exist and the moving party is entitled to judgment as a matter of
law, to require a trial would be contrary to the public policy expressed by the enactment
of the summary judgment rules of procedure. See, Int'l Harvester Co
. v. Continental
Cos. Co.,
33 I11 .App.2d
467,179 N
.E.2d 833
(Is`
Dist. 1962).
ARGUMENT
I.
Since CSXT completely remediated the release prior to the filing of the
Complaint, the Complaint will not aid in the enforcement of the Act and
is purely punitive.
Illinois courts and the Board have consistently held that the primary purpose of
the Environmental Protection Act is to aid in the enforcement of the Act and punitive
considerations are secondary
. See, City of Monmouth v . Pollution Control Board, 57
I11.2d 482, 313 N .E.2d 161 (1974) ;
Southern Illinois Asphalt Company, Inc . v. Pollution
Control Board, 60 IIl .2d 204, 326 N .E .2d 406 (1975)
; Harris-Hub Co . v. Pollution
Control Board, 50 Ill.App.3d 608, 365 N
.E.2d 1071 (1" Dist. 1977); Tri-County Landfill
Company v
. Pollution Control Board, 41 I11.App.3d
249, 353 N .E.2d 316 (2 nd Dist.
1976)
. The Illinois Supreme Court has also held that the imposition of civil penalties is
inappropriate when the violations had ceased long before the Environmental Protection
Agency instituted an
action before the Pollution Control Board based upon such
violations. Southern Illinois Asphalt Company, Inc
. v
. Pollution Control Board, 60 I11 .2d
204, 326 N .E.2d 406 (1975) .
There are no issues of material fact in dispute that CSXT completely remediated
the release prior to the filing of the Complaint
. As noted above, immediately following
the release, CSXT retained HPS to conduct emergency response and remediation
activities at the site . See Affidavit of John Broadus
. Thereafter, CSXT retained Arcadis
8
to document that the remedial activities performed by HPS successfully brought the site
within the TACO cleanup standards for soil and groundwater
. See Exhibit C at p . 5-7;
see also Exhibit D at p . 5-7.
On February 23, 2006, CSXT met with representatives of the Illinois Attorney
General's Office and the IEPA prior to the filing of this Complaint and CSXT advised the
People that the release has been completely addressed and that there are no on-going
violations of the Act . See
Affidavit of Mr . Sid Glenn. Following this meeting and at the
request of the IEPA and the Illinois Attorney General's Office, Arcadis performed an
additional soil sample investigation and again verified that the remediation performed at
the site was successful
. Furthermore, before the filing of this Complaint, Ms . Kathy
Vieregge of the IEPA verbally advised Mr
. Kevin Peterbus of Arcadis that the site
appears to be in compliance with the Act
. See Affidavit of Mr
. Kevin Peterbus ; see also
Exhibit F
. Therefore, whatever the People considered a violation of the Act had ceased
long before the People initiated the pending action before the Pollution Control Board
based upon such alleged violations .
Since CSXT fully addressed the release and demonstrated to both the Illinois
Attorney General's Office and the IEPA that the site was within TACO soil and
groundwater cleanup standards before the Complaint was filed, the People's allegations
of violations of the Act and demand for civil penalties is purely punitive and therefore is
contrary to the Illinois Supreme Court's ruling in
Southern Illinois Asphalt Company
and
its progeny.
As Courts and the Board have held, "to penalize those who act in good faith
would only discourage others who act in good faith from moving to correct their
9
violations ." Harris-Hub Co. v. Pollution Control Board,
50 I11 .App.3d 608, 365 N .E.2d
1071 (I s` Dist. 1977) (citing Employees of Holmes Brothers v
. Merlan Inc., 2 I11.P.C .B.
Op. 405 (1971)) . Here CSXT acted in good faith by voluntarily conducting an immediate
site remediation and brought the site into compliance with TACO standards for soil and
groundwater long before the People filed the pending action against CSXT . Thus, the
People's allegation that CSXT violated Section 12(a), Section 12(d) and Section 21 (a) of
the Act is entirely without merit as a matter of law and summary judgment should be
granted in favor of CSXT as to all three of the counts alleged in the People's Complaint
.
II. There is no evidence in the record to support Counts I and II in the
People's Complaint and therefore the People's allegations that CSXT
violated Sections 12(a) and 12(d) of the Illinois Environmental Protection
Act fails as a matter of law.
Section 12(a) of the Act provides, in pertinent part, that no person shall
: "[clause
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
. . ." (415 ILCS 5/12(a)
. Section
12(d) of the Act provides that no person shall
: "[d]eposit any contaminants upon the land
in such place and manner so as to create a water pollution hazard
." (415 ILCS 5/12(d)).
The Board has stated that a "finding of a water pollution hazard [under Section 12(d)]
requires a finding of the potential for the same effects as are involved in a finding of
water pollution [under Section 12(a)] :
creation of a nuisance or a rendering of waters to
be harmful, detrimental, or injurious ."
See People of the State of Illinois v
. Chalmers,
PCB 96-111 (2000)
. The Board has also held that absent evidentiary proof of particular
quantities and concentrations of contaminants present in the groundwater, there can be no
violations of Section 12(a) and Section 12(d) of the Act. Id;
see also Jerry Russell Bliss,
10
Inc. v
. Illinois Environmental Protection Agency, 138 I11.App.3d 699, 485 N .E.2d 1154
(5'h
Dist. 1985) ; People v. Hendricks, PCB 97-31 (1998) .
As the basis for alleging that CSXT violated Section 12(a) of the Act, the People
state in the Complaint that "[r]esidual contamination of soil and/or subsurface strata may
be a continuing source of further releases to the waters of the State, including
groundwater." (Complaint, Count I, Paragraph 17). Moreover, as
the basis for alleging
that CSXT violated Section 12(d) of the Act, the People state that "[b]y releasing diesel
fuel at the Yard, the Respondent has created a water pollution hazard ." (Complaint,
Count II, Paragraph 23)
. These allegations, however, are entirely without merit and fail
as a matter of law because the incident at issue
never impacted the waters of the State or
otherwise created a nuisance or rendered waters to be harmful, detrimental or incurious
.
Without any evidence demonstrating that the release rendered the waters of the State to
be harmful, detrimental or injurious, the People's allegations that CSXT violated Section
12(a) and Section 12(d) of the Act fails as a matter of law
.
There are simply no facts in the record that CSXT caused, threatened or allowed
water pollution or a water pollution hazard
that give rise to a violation of Sections 12(a)
or 12(d) of the Act
. On the same day of the release, CSXT retained HPS to conduct
emergency response and remediation activities at the site
. See Exhibit C at p . 2
; see also
Exhibit D at p . 2
. CSXT further retained Arcadis to collect groundwater samples in the
area of the release and verify that the remediation activities performed by HPS
successfully remediated the site
. Id. at p. 3-7
. In the groundwater samples collected by
Arcadis, and as reported to the IEPA before this Compliant was filed, all the groundwater
samples collected and analyzed for TACO contaminants were either
below laboratory
11
detection limits or
below TACO Tier I Class II groundwater Remediation Objectives . Id.
at p. 5-6 . Thus, there is no evidence in the record that as a result of the accidental release
groundwater was previously impaired, is currently impaired, or that there is any potential
for future impairments to the waters of the State of Illinois .
Furthermore, on August 2, 2005, Arcadis collected and analyzed soil samples at
the site.
These soil sample results were determined to be
below TACO
Industrial/Commercial Tier I Remediation Objectives
. Id. at 5-7
. When the IEPA and
the Illinois Attorney General's Office requested that two additional soil samples be
collected to verify these results, CSXT complied and instructed Arcadis to collect the
additional samples at the site . Id. Again, the results of these soil samples were
below the
TACO Industrial/Commercial Tier I Remediation Objectives .
CSXT presented the
results of these soil investigations in the Response to Violation Notice, L-2005-01001
and
Closure Request and Response to Violation Notice, L-2005-01001
reports submitted to
the IEPA and the Illinois Attorney General's Office before the filing of this Complaint
.
Id.
Thus, not only is there no evidence in the record of any water pollution or water
pollution hazards, the soil investigation performed by Arcadis indicates that the
emergency response and remediation activities performed at the direction of CSXT
successfully remediated this site
. As stated above, the Agency itself even corroborated
this during a telephone conversation between Ms
. Kathy Vieregge of the IEPA and Mr
.
Kevin Peterbus of Arcadis when Ms
. Vieregge verbally stated that the site appears to be
in compliance with the Act . See
Affidavit of Kevin Peterbus, see also
Exhibit F .
Accordingly, the record is without any facts demonstrating that CSXT caused water
12
pollution or a water pollution hazard giving rise to a violation of Section 12(a) or 12(d) of
the Act.
Courts and the Board have consistently held that absent evidentiary proof in the
record of contaminants present in sufficient quantity or concentrations to constitute water
pollution or a water pollution hazard there can be no violation of Sections 12(a) or 12(d)
of the Act . See Jerry Russell Bliss, Inc. v
. Illinois Environmental Protection Agency, 138
I11 .App .3d 699, 485 N .E.2d 1154 (5' Dist. 1985).
In Bliss, also a case in which the
People alleged water pollution and water pollution hazards at a rail yard but with facts far
more egregious than the present matter, the court reversed the Board's ruling that the
respondent violated Sections 12(a) and 12(d) of the Act because there was no evidence in
the record of any impacts to waters of the State despite the fact that the defendant in Bliss
intentionally released a toxic hazardous substance and performed no site cleanup
. Id.
The Bliss case involved the following facts
: In April, 1982, IEPA officials
witnessed an
employee of the Bliss Oil Company enter a rail yard and begin spraying a
black liquid on the ground . Id., 138 II1.App.3d at 701, 485 N
.E.2d at 1155 . The IEPA
officials took samples of the black liquid material and a laboratory analysis showed that
the tested material contained over 10,000 parts per million of trychlorethylene, a
contaminant listed by the Board as a toxic hazardous substance . Id.
At trial, an IEPA
geologist testified that the area where the spraying occurred is located approximately
1,200 feet from the Mississippi River and that the soil in the area of the release was prone
to leaky artesian conditions, that is, water levels from below ground may tend to rise
above the surface . Id.
Like in the present matter, the People alleged that Bliss violated
Sections 12(a) and 12(d) of the Act. Id., 138 I11.App.3d
at 700, 485 N .E.2d at 1155 .
13
The Circuit Court, however, concluded that the record was insufficient to
establish that Bliss had violated Section 12(a) and Section 12(d) of the Act . Id.,
138
Ill .App.3d
at 704, 485 N.E.2d at 1157
. The court noted that "a principal draftsman of the
Environmental Protection Act recognized that the mere presence of a potential source of
water pollutants on the land does not necessarily constitute a water pollution hazard
." Id.
The court further stated that "no effort was made to establish that this particular quantity
and concentration of [contaminants] was likely to create a nuisance or to render the
waters harmful, detrimental, or injurious ." Id.
Thus, even in the face of intentional and
willful conduct on the part of the defendant, the court, as
a matter of law reversed the
Board's ruling that found Bliss guilty of violations of Section 12(a) and 12(d) of the Act
because the People could not offer any evidence of actual impacts to the waters of the
State caused by the defendant's actions .
Id., 138 I11.App.3d at 704, 485 N .E.2d at 1158
.
As in Bliss,
here the record is entirely without evidence showing any impacts
whatsoever to the waters of the State
. However, unlike Bliss where the defendant acted
intentionally, performed no cleanup and was still found not liable for violations of
Section 12(a) and Section 12(d) of the Act, the CSXT release was
a bone fide accident
and CSXT performed an immediate site remediation
. As stated above, CSXT retained
environmental contractors to conduct prompt emergency response and remediation, soil
samples demonstrated that the site is in compliance with TACO Industrial/Commercial
Tier I Remediation Objectives and all groundwater samples were either
below laboratory
detection levels for TACO contaminants or
below TACO Tier I Class II groundwater
Remediation Objections
. Thus, as in Bliss,
the People's allegations that CSXT violated
of Sections 12(a) and 12(d) of the Act are contrary to the manifest weight of the evidence
14
and the facts are insufficient to establish that the release at the Rose Lake Rail Yard
created water pollution or a water pollution hazard.
Furthermore, in the case of People v. Hendricks, the Board found the defendant
not liable for a violation of Section 12(a) of the Act when the defendant was alleged to
have caused water pollution when -fighting a tire fire and the People claimed that runoff
contaminated a creek which flowed into the water source for the Town of Staunton,
Illinois. People v . Hendricks, PCB 97-31 (1998) . In Hendricks, the Board found that
there was no evidence in the record establishing any adverse impacts on waters of the
State and "without such evidence, the Board cannot find that runoff has rendered waters
of the State harmful, detrimental, or injurious ." Id. Accordingly, without any evidence
in the record of adverse impacts to the waters of the State, the Board ruled that the
defendant could not be held liable for a violation of Section 12(a) of the Act
. Id. In
another case alleging a violation of Section 12(a) of the Act, the Board also held that "the
mere presence of a contaminant is insufficient to establish that water pollution has
occurred or is threatened
; it must be shown that the particular quantity and concentration
of the contaminant in question is likely to create a nuisance or render the waters harmful,
detrimental, or injurious ." See People v
. Chalmers, PCB 96-111 (2000) .
Here, whatever diesel fuel was released due to the accident was immediately
rectified by the emergency response and remediation activities performed at the site
.
Again, all groundwater samples collected by Arcadis at the Rose Lake Yard site indicated
that the accidental release was fully addressed by the remediation activities performed by
HPS long before the filing of this complaint
. As such, the People can produce no
evidence demonstrating that a particular quantity and concentration of the release in
15
question likely created a nuisance or rendered waters of the State harmful, detrimental, or
injurious. Thus, according to the rulings in Bliss, Hendricks
and Chalmers, the People's
allegations that CSXT violated Section 12(a) and Section 12(d) fails as
a matter of law.
Therefore, the Board should grant CSXT's motion for summary judgment as to
Counts I and II of the People's Complaint which allege violations of Sections 12(a) and
12(d) of the Act .
III.
Count III of the People's Complaint alleging an open dumping violation
is contrary to policy behind Section 21(a) of the Act and therefore fails as
a matter of law .
The People allege that CSXT violated Section 21(a) of the Act by "causing or
allowing the release of diesel fuel at the Yard and leaving the contaminants in the soil
. . ."
(Complaint, Count III, Paragraph 20)
. Section 21(a) of the Act provides that no person
shall: "[c]ause or allow the open dumping of any waste
." (415 ILCS 5/21(a)) . However,
characterizing CSXT's accidental release and immediate site cleanup as an open dumping
violation is contrary to the letter and spirit of Section 21 (a) of the Act
.
CSXT's accidental release cannot be considered open dumping under the
statutory definition of the term
. Under the Act, the term open dumping is the
"consolidation of refuse from one or more sources at a disposal site
." (415 ILCS
5/3 .305) .
This definition requires the affirmative act of consolidating and disposing
refuse, not the accidental release of a substance
as in the present matter
. The cardinal
rule of statutory construction is to ascertain and give effect to the intent of the legislature
.
See People ex rel. Ryan v
. McFalls, 313 I11 .App.3d 223, 728 N.E.2d
1152 (3
d Dist.
2000)
. Thus, the statutory language of Section 21(a) of the Act does not support the
People's allegation of
an open dumping violation in this instance as a matter of law
.
16
Further, CSXT did not "leave the contaminants in the soil" as is stated in the
People's Complaint . (Complaint, Count III, Paragraph 20)
. It is an undisputed fact that
on the day the release occurred CSXT retained HPS to immediately perform emergency
response and environmental remediation activities which included the excavation of
contaminated soil from the release area
. See Affidavit of John Broadus
. Thus, in no way
can CSXT be accused of leaving contaminants in the soil at the site, and as such, the
People's basis for alleging an open dumping violation is misplaced
.
Lastly, the purpose of Section 21 of the Act is to prohibit actions such as littering,
illegal garbage disposal, operating a hazardous waste facility without a permit and failing
to properly dispose of waste in a landfill
. A review of Illinois case law and Board
decisions indicates that these are the types of acts that are prosecuted by the State as open
dumping violations
. See e.g. People ex rel
. Ryan v. McFalls, 313 Ill .App.3d 223, 728
N
.E.2d
1152 (3
rd
Dist . 2000); Wasteland, Inc
. v. Illinois Pollution Control Board,
118.App.3d 1041, 456 N .E
. 964 (3`d Dist. 1983);
Miller v. Illinois Pollution Control
Board, 267 Ill.App .2d 160, 642 N.E.2d
475 (4" Dist. 1994) .
In contrast, the case currently before the Board involved a train accident
. As a
result of the accident, diesel fuel was released from the train's engine and immediately
upon becoming aware of the release CSXT retained emergency response professionals to
clean up the site to comply with the state TACO standards
.
Certainly not every
accidental release in the State of Illinois constitutes an open dumping violation,
particularly when the company responsible for the release acted in good faith to
immediately rectify the release .
Thus, Count III of the People's complaint which
17
characterizes CSXT's accidental release as an open dumping violation fails as a matter of
law.
Wherefore, CSXT respectfully requests that the Board enter summary judgment
in CSXT's favor in this matter and dismisses all counts alleged in the People's Complaint
with prejudice .
Respectfully submitted,
Dated:
-21/~2Z
l0 7
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Telephone: 312/849-8100
\4305432 .5
W"
~ ieser~
B :
18
One of its Attorneys
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondent's Motion for
Summary Judgment upon those listed on the attached Notice of Filing by first class mail,
postage affixed .
CSX TRANSPORTATION, INC
.
By :
1 .
My name is John H . Broadus.
2.
I am employed by Hulcher Services, Inc
. (hereinafter "HSI") as a Project
Manager. I am also a licensed Professional Engineer and a licensed Corrective
Action Project Manager in the State of Texas
.
3 .
On July 9, 2004, CSXT retained HSI to conduct emergency response and
environmental remediation activities at the Rose Lake Yard CSXT facility located
at 3900 Rose Lake Yard Road, East St . Louis, St . Clair County, Illinois
.
4 .
I assisted in the preparation and have direct personal knowledge of the
Scope of
Work, Proposal Number 9985-11 . The
Scope of Work, Proposal Number 9985-11
is dated September 29, 2004 and was prepared for Mr
. Joseph W . Tupa of CSXT
and a copy was provided to the Illinois Environmental Protection Agency .
Attached hereto and made a part hereof as Exhibit A is a true and correct copy of
the
Scope of Work, Proposal Number 9985-11 .
If sworn as a witness, I can testify
competently to the accuracy of Exhibit A
.
5.
On December 21, 2004, HSI prepared a report titled
Environmental Remediation
Report (HSI Project Number PA 106810) to document the emergency response
and remediation activities performed at the site
. I assisted in the preparation and
have direct personal knowledge of the
Environmental Remediation Report .
Attached hereto and made part hereof as Exhibit B is a true and correct copy of
the Environmental Remediation Report.
If sworn as a witness, I can testify
competently to the accuracy of Exhibit B .
FURTHER, Affiant sayeth not.
DATED:
\4384100.2
i
AFFIDAVIT
John H
. Bro •~ s
1 .
My name is Sid Glenn .
2.
I am employed as a Vice President for ARCADIS .
3.
In January, 2005, CSX Transportation Inc
. (hereinafter "CSXT") retained
ARCADIS to perform site investigation, document the emergency response and
remediation activities performed by Hulcher Professional Services and prepare
reports to be submitted to the Illinois Environmental Protection Agency
(hereinafter "IEPA") regarding the Rose Lake Yard, CSXT facility located at
3900 Rose Lake Yard Road, East St
. Louis, St. Clair County, Illinois .
4.
I was in a direct or supervisory capacity with respect to the work performed by
ARCADIS on behalf of CSXT at the Rose Lake Yard site .
5 .
I assisted in the preparation and I have direct personal knowledge of the reports
titled Response to Violation Notice, L-2005-01001,
dated March 3, 2006 and
Closure Request and Response to Violation Notice, L-2005-01001,
dated June 1,
2006. Attached hereto and made a part hereof as Exhibit C is a true and accurate
copy of the
Response to Violation Notice, L-2005-01001 . If sworn as a witness, I
can testify competently to the accuracy of Exhibit C
. Attached hereto and made a
part hereof as Exhibit D is a true and accurate copy of the
Closure Report and
Response to Violation Notice, L-2005-01001 . If sworn as a witness, I can testify
competently to the accuracy of Exhibit D .
6.
On February 23, 2006, I was present at a meeting between representatives of
CSXT, ARCADIS, legal counsel for CSXT, IEPA and the Illinois Attorney
General's Office
. ARCADIS and CSXT presented documents and advised the
Illinois Attorney General's Office and the [EPA that the release had been
completely addressed and that no further action was required
. At this meeting,
representatives from the IEPA requested that a final report be submitted
.
7.
ARCADIS submitted to the IEPA and the Illinois Attorney General's Office the
report titled Response to Violation Notice, L-2005-01001, dated March 3, 2006,
which presented technical data and requested closure of this incident
. The Illinois
Attorney General's Office responded by requesting that two additional soil
samples be collected in a letter dated April 14, 2006
. ARCADIS collected the
additional two soil samples and presented the results in the report titled
Closure
Request and Response to Violation Notice, L-2005-01001, dated June 1, 2006 .
8.
The results and the analysis of additional soil samples collected by ARCADIS in
May and June of 2006 are set forth in Exhibit C and Exhibit D
AFFIDAVIT
FURTHER, Affiant sayeth not .
DATED: a ,
a,~
-
D']
\4447722 .1
1 .
My name is Kevin Peterburs .
2.
I am employed as a staff engineer for ARCADIS.
3 .
I have direct personal knowledge of work performed and reports prepared by
ARCADIS on behalf of CSX Transportation Inc
. (hereinafter "CSXT") regarding
the Rose Lake Yard CSXT facility located at 3900 Rose Lake Yard Road, East St
.
Louis, St . Clair County, Illinois
.
4.
On July 12, 2006, I had a telephone conversation with Ms
. Kathy Vieregge of the
Illinois Environmental Protection Agency (hereinafter "IEPA") as a follow-up to
the
Closure Request and Response to Violation Notice, L-2005-01001,
dated June
1, 2006, prepared by ARCADIS for CSXT and submitted to the IEPA
.
5.
In accordance with the procedures of the Chicago, Illinois office of ARCADIS to
keep contemporaneous records of all telephone conversations made in the course
of regularly conducted business activities, I prepared a record of the conversation
between myself and Ms . Vieregge
. Attached hereto and made a part hereof as
Exhibit F is a true and correct copy of the telephone conversation record
. If
sworn as a witness, I can testify competently to the accuracy of Exhibit F
.
FURTHER, Affiant sayeth not.
DATED:
\4384287 .2
2- -2-3- 0 7
AFFIDAVIT
Kevin Peterburs
