RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
F
E
B 2 7 2n7-,
INDIAN CREEK DEVELOPMENT COMPANY,
)
STATE OF ILLINOIS
an Illinois Partnership, Individually as
)
Pollution Control Board
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 February 27, 2007, the attached document,
Complainant's Objection to BNSF's Motion for Leave
to File an Additional Brief,
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 6th
day of February, 2007,
with proper postage affixed
.
Indian Creek Development Company and
Chicago Land Trust Company t/u/t
3291,
dated December
15, 1981
By 91 64M&
See&Iea
One of Its Attorneys
F
:\GCS\Indian Creek
Development JB Industries\PCB Enforcement Action\Pleadings, Filed\12] Not
. of Filing -
Objection to BNSF's Add'I Brief.doc
PRINTED ON RECYCLED PAPER
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
Bradley P
. Halloran
Hearing Officer
Illinois Pollution Control Board
James R
. Thompson Ctr ., Ste. 11-500
100 W
. Randolph Street
Chicago, Illinois 60601
Fax: (312) 814-3669 and mail
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
.
)
Service List
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
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
Assistant Attorney General
Matthew J . Dunn, Chief Environmental
Enforcement/Asbestos Litigation Div
.
100 W
. Randolph Street
Chicago, Illinois 60601
312-814-2521
312-814-2347 - Facsimile
George Theophilos
Environmental Enforcement /Asbestos
Litigation Division
100 W. Randolph Street
Chicago, Illinois 60601
312-814-6986
312-814-2347 - Facsimile
F
:\GCS\Indian Creek Development JB Industries\PCB Enforcement Action\Service
List.doc
PRINTED ON RECYCLED PAPER
2
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
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CL
RK'S
OFFFIICEE'
FEB 2 7 200?
Pollution
STATE OF
Control
ILLINOIS
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 SANTA FE )
RAILWAY COMPANY, a Delaware Corporation )
Respondents.
)
vs .
Complainant,
PCB- 07-44
Citizen's Enforcement
§21(e), §12(a), §12(d)
OBJECTION TO BNSF's MOTION FOR LEAVE TO FILEAN
ADDITIONAL BRIEF
NOW COME the complainants, Indian Creek Development Company, individually
and as the beneficial owner under the Chicago Title and Trust Company trust number
3291 dated December 15, 1981, and the Chicago Title and Trust Company, trustee
under trust number 3291 dated December 15, 1981 (collectively, "Indian Creek") and file
this Objection to the Burlington Northern Santa Fe Railway Company's ("BNSF") Motion
for Leave to File an Additional Brief, and in support thereof Indian Creek states as
follows :
INTRODUCTION
The BNSF has filed, "Respondent's Motion for Leave to File Instanter its Reply
Brief in Support of its Motion to Dismiss" pursuant to 35 III
. Admin
. Code 101 .500(e)
which states in material part :
The moving person will not have the right to reply, except as
permitted by the Board or hearing officer in order to prevent
material prejudice .
PRINTED ON RECYCLED PAPER
In a nutshell, the only thing that results in material prejudice to the BNSF is the
truth
. Significantly, what the BNSF has to say rebuts noting and changes nothing
.
Rather it shows what is really going on . Fourteen years after the initial release that
subsequently contaminated Indian Creek's property and despite the ongoing flow of
contaminants onto and under Indian Creek's property as alleged in the Complaint, the
BNSF continues its tap dance .
ARGUMENT
The only thing that the BNSF seeks to accomplish is to delay and perhaps avoid
its responsibility to remediate the Indian Creek Property
. From its motion and attached
reply brief, it is apparent that the BNSF does not, and indeed cannot, deny that the
contamination at issue is a result of release of diesel fuel on its property fourteen (14)
years ago
. Nonetheless the BNSF apparently will not remediate its own property, the
same property which the Complaint alleges to be the source of the contamination
flowing on the Indian Creek Property
. Significantly the Consent Order expressly allows
the BNSF to not remediate the BNSF Property
. Indian Creek has noted in its response
memorandum :
One need only carry the BNSF's position to its logical absurdity to see the
flaw in its position
. For example, should the Agency mistakenly approve
(which it has not) and the BNSF actually perform remediation on the
BNSF Property to a level that is significantly less clean, than the Indian
Creek Property, Indian Creek would have no remedy under the Act before
the Board to protect itself from the continued flow of contamination onto its
property.
If BNSF never remediates its Property as allowed under
Paragraph 3(d) of the Consent Order, BNSF's view is that Indian Creek
still has no Remedy before the Board
. Either way, BNSF's view would
preclude a Remedy under the Act before the Board, the agency primarily
vested with such authority .
Printed on Recycled Paper
2
Perhaps the BNSF is waiting to see if the passage of time alone will flush the
contamination from the BNSF Property, causing it to flow onto the Indian Creek
Property. Is this what the Act allows?
Certainly the Consent Order does not allow such a result
. The Consent Order
expressly states that neither the entry of the consent decree nor the stipulated facts
therein can be used for any purpose except to enforce the Consent Order
. The Order
thus contemplates additional actions and places the BNSF's position at odds with the
Consent Order itself
. The BNSF doesn't address this issue, because it can't
.'
In its proposed additional brief, the BNSF attempts to impress the Board with its
claimed diligence by attaching a subsurface investigation report, proposed remediation
plan and a draft pilot test study work plan
. All, however, relate to the Indian Creek
Property and not the BNSF Property which is the upgradient source of the
contamination.
All this is in a supposed attempt to rebut Indian Creek's claims
.
However, what Indian Creek said in its response brief is
:
BNSF is silent on what remediation measures have been submitted to and
approved by the Agency regarding ANYTHING on the Indian Creek or the
BNSF Property since the Consent Order was entered because fourteen
years later, NOTHING of the sort has been approved by the Agency
.
Significantly, BNSF's proposed reply brief makes it clear that nothing of
the sort has been approved by the Agency
. Significantly, BNSF's proposed reply
brief makes it clear that Indian Creek's statement here continues to be true
-
nothing of the sort has been approved by the Agency
.
I The BNSF claims that Indian Creeks' real agenda is to extort money from the BNSF by mischaracterizing the
BNSF's prior Kane County Action
. While that is completely inaccurate, the Board can review that complaint as it is
attached to Indian Creek's last response .
Printed on Recycled Paper
3
It is also noteworthy that in its proposed reply, the BNSF again discusses
the same cases as in its opening brief, and which Indian Creek refuted in its
response
. Of course, there is the supposed meeting of February 20
th that the
BNSF had with IEPA "to discuss the remediation plans for complainant's property
(not the BNSF Property which is the source) developed by BNSF's consultant"
. It
would have been nice to advise Indian Creek and its counsel that such a meeting
was planned so counsel could attend
. Instead, no notice of that meeting was
received
. Notice would have made it difficult to have the meeting in the time
available between the February 16 th
filing of Indian Creek's response and the
filing of the instant motion by the BNSF
. Here we see just another failed attempt
to show alleged diligence as though the Consent Order expressly anticipates
and allows the complaint which Indian Creek filed .
WHEREFORE, Complainants, Indian Creek, pray that the Board deny the
BNSF's motion for leave to file .
Respectfully Submitted,
GLENN C
. SECHEN
Schain, Burney, Ross & Citron, Ltd
.
222 North LaSalle St
., #1910
Chicago, IL 60601
312-332-0200
312-332-4514 telefax
gsechen(a.schainlaw .co m
GCS\Indian Creek Development JB Industries\PCB Enforcement Action\Pleadings, Filed\Objection to BNSF's Motion for Leave to
File an Additional Brief Draft 2 .doc
Printed on Recycled Paper
Indian Creek Development Company and
Chicago Land Trust Company t/u/t 3291, dated
December 15, 1981
By
: C€°ewi (i, ,S'ed"
4
