2

For reasons more fully explained below, the Board denies the motion to dismiss,

determines that the complaint is neither duplicative nor frivolous, and accepts the complaint for

hearing.

REGULATORY BACKGROUND

Both the Act and the Board’s procedural rules require that, for complaints filed by

citizens, the Board shall schedule a hearing unless it determines that the complaint is

“duplicative” or “frivolous.” 415 ILCS 5/31(d)(1) (2004); 35 Ill. Adm. Code 103.212(a). No

later than 30 days after service of the complaint, respondents may file a motion alleging that a

citizen’s complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b).

The Board’s procedural rules provide that “‘[d]uplicitous’ or ‘duplicative’ means the

matter is identical or substantially similar to one brought before the Board or another forum.” 35

Ill. Adm. Code 101.202. “A complaint would be duplicitous if another action was pending

between the same parties, alleging substantially the same violations, before another tribunal with

power to grant the same relief as the Board.” Lake County Forest Preserve District v. Neil Ostro,

Janet Ostro, and Big Foot Enterprises, PCB 92-80, slip op. at 2 (July 30, 1992). The Board may

dismiss any complaint as “duplicitous” that raises claims identical or substantially similar to

another action.

Id

., citing WIPE v. PCB, 55 Ill. App. 3d 475, 480 (1st Dist. 1977).

The Board’s procedural rules provide that “‘frivolous’ means “a request for relief that the

Board does not have the authority to grant, or a complaint that fails to state a cause of action

upon which the Board can grant relief.” 35 Ill. Adm. Code 101.202.

MOTION TO DISMISS

In its motion, Burlington moves the Board to dismiss as duplicative the complaint filed

by Indian Creek. Mot. at 1. Burlington asserts that this matter arises out of the purported release

of diesel fuel as a result of a January 20, 1993 collision between two trains on Burlington

property in the vicinity of Indian Creek’s facility.

Id

.

Burlington argues that the Illinois Attorney General’s Office (AGO) and the State’s

Attorney of Kane County (County) filed a lawsuit against Burlington in the Circuit Court of

Kane County alleging violations of the Act and seeking cleanup of the diesel fuel, and that the

Circuit Court of Kane County entered a consent order addressing the very same types of relief

sought by Indian Creek in this action. Mot. at 2. Burlington contends that the complaint

duplicates the Kane County lawsuit and requests the same types of relief as that provided in the

consent order.

Id

. Specifically, Burlington asserts that the circuit court case addressed the very

same railroad incident, involved the same respondent, and provided for the cleanup of the same

environmental conditions. Mem. at 1.

Burlington argues that by filing the instant complaint, Indian Creek is attempting to

circumvent the consent order, disregarding the detailed and comprehensive resolution previously

reached between the State and Burlington and ordered by the Circuit Court of Kane County.

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3

Mem. at 1. Thus, asserts Burlington, the complaint is duplicative and should be dismissed by the

Board. Mem. at 1-2.

Burlington argues that the complaint is brought by Indian Creek in its capacity as a

private attorney general, whereas the actual attorney general brought the county lawsuit. Mem.

at 4. Burlington asserts that it is the defendant/respondent in both the complaint and the county

lawsuit, and that there is no substantive difference between this action and the county lawsuit

brought by the State

. Id.

Burlington maintains that under the consent decree, it assumed full responsibility for the

cleanup, paid a civil penalty, agreed to cease and desist from future violations of the Act, and

agreed to stipulated penalties in the event of failure to comply with the consent order. Mem. at

5. Further, Burlington argues that the consent order fully addresses the release of diesel fuel at

and from the its property, and that the consent order moots Indian Creek’s arguments as the

violations and resulting environmental conditions have already been fully addressed by the

Circuit Court of Kane County.

Id

.

The complaint seeks relief, contends Burlington, which is contradictory to the response

actions mandated by the consent order. Mem. at 6. For instance, asserts Burlington, the consent

order requires that Burlington maintain its diesel fuel containment and recovery system, meet

Illinois Environmental Protection Agency (Agency) closure criteria and submit various work

plans and closure reports for Agency approval, but the complaint requests that Indian Creek or

the Board (not the Agency) select the means of remediation and set the cleanup criteria at

background levels.

Id

.

Burlington argues that Indian Creek is acting as a “private attorney general” in bringing

its citizen’s enforcement claims under the Act, but that these claims duplicate the claims made by

the AGO and the State’s Attorney of Kane County, and that Burlington should not be subject to

enforcement claims in two separate actions by plaintiffs and complainants who are acting in the

same capacity. Mem. at 7.

RESPONSE TO MOTION TO DISMISS

Initially, Indian Creek filed a motion to set a briefing schedule for its response to the

motion to dismiss. In the motion, Indian Creek asked that the Board grant it twenty-one days up

to and including February 6, 2007, to respond to the motion to dismiss and memorandum filed by

Burlington. Mot. to Sched. at 2. Burlington did not respond to the motion to set a briefing

schedule.

If a party files no response to a motion within 14 days, the party will be deemed to have

waived objection to the granting of the motion.

See

35 Ill. Adm. Code 101.500(d). The Board

grants Burlington’s motion, and accepts its response to the motion to dismiss.

In its response, Indian Creek asserts that the instant complaint is not in any way

duplicative, and that it is does not seek to circumvent the consent order in that its property was

not known to be impacted by the contamination at the time the consent order was entered, and

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4

was not, regardless, a party to the consent order. Resp. at 1-2. Indian Creek argues that

Burlington shows a blatant disregard for the consent order itself, as it now attempts to avoid

Board action in an apparent effort to sidestep its responsibility to remediate the environmental

contamination on its property which has migrated and continues to migrate to and contaminate

Indian Creek’s property. Resp. at 2.

Nonetheless, contends Indian Creek, Burlington asks the Board to sit back and ignore the

ongoing environmental contamination of Indian Creek’s property based on a consent order that

allows remediation, should Burlington eventually submit a remediation plan and obtain Agency

approval. Resp. at 3. Indian Creek argues that this would be essentially discretionary on the

Agency’s part.

Id

. However, Indian Creek contends, the consent order does not even require

remediation of Burlington’s own property which is and is alleged to be the source of the

contamination at issue.

Id

.

Indian Creek asserts that the consent decree expressly denies rights of third parties and

precludes enforcement by third parties such as Indian Creek. Resp. at 3. Further, argues Indian

Creek, at the time of the consent decree, contamination was not known to exist on the Indian

Creek property even though Burlington had an obligation to investigate the extent of

contamination. Resp. at 4. Indian Creek asserts that its previous counsel sued Burlington in

circuit court but was unable to enforce the Act there and certainly could not enforce the consent

order.

Id

.

Indian Creek argues that Burlington asks the Board to deny not just a member of the

public, but a property owner, access to the primary tribunal vested with the authority to enforce

the Act, and that to do so would turn the Board decision here into one which contravenes the

express purpose of the Act - the interests of innocent property owners. Resp. at 6

Indian Creek argues that similar violations occurring at different times are not

duplicative, particularly where the complainant was not a party to the circuit court consent

decree. Resp. at 10. Finally, Indian Creek asserts that conditions have changed in the 14 years

since the original release and the 12 years since the entry of the consent order. Resp. at 11.

MOTION FOR LEAVE TO FILE A REPLY

On February 21, 2007, Burlington filed a motion for leave to file a reply to Indian

Creek’s response, accompanied by a reply. In the reply, Burlington asserts that Indian Creek’s

repeated references to the claimed inaction on Burlington’s part completely misrepresent the

facts of the matter and materially prejudices Burlington. Mot. For Leave at 2. Burlington

contends that Indian Creek’s response brief goes well beyond simply rebutting or responding to

the arguments, paints a set of facts that are not true, and that fairness dictates that Burlington be

given the opportunity to respond and set the record straight.

Id

. Burlington requests that the

Board grant this motion and deem the attached reply brief filed

instanter

. Mot. For Leave at 3.

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5

OBJECTION TO MOTION FOR LEAVE TO FILE

Indian Creek objects to the motion for leave to file, arguing that the only thing that results

in material prejudice to the Burlington is the truth, and that what Burlington asks for leave to file

rebuts noting and changes nothing. Obj. at 1. Indian Creek asserts that the reply shows only that

14 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, Burlington continues its tap dance.

Id

. Indian Creek contends that the only thing

that Burlington seeks to accomplish is to delay and perhaps to avoid its responsibility to

remediate the Indian Creek property. Obj. at 2. Indian Creek concludes that the reply is another

failed attempt to show alleged diligence. Obj. at 4.

BURLINGTON’S REPLY

Burlington maintains that it diligently pursued investigation and remediation of any

diesel fuel released from its property as a result of the subject train collision, and has submitted a

proposed remediation plan and draft pilot test study work plan to the Agency and to Indian

Creek. Reply at 1. Burlington argues that after finding contamination on its property, Indian

Creek sought unreasonable sums from Burlington for access to its property. Reply at 2.

Further, asserts Burlington, Indian Creek’s brief describes nothing new and provides no

legal support for its argument that its case should not be dismissed. Reply at 2. Instead,

Burlington contends the sole argument is that the response activities are taking too long, despite

the fact that it claims that it did not identify contamination on its property until 2000 and refused

to allow access for more than a year. Reply at 3. Burlington notes that there is no time

exception to the Board rules regarding duplicative actions, nor is there any legal basis to

circumvent the consent order.

Id

.

Burlington argues that it has extensively investigated Indian Creek’s property and has

submitted to a plan to initiate remediation of the property, and that by dismissing this

proceeding; the Board would not circumvent its role under the Act. Reply at 3-4. Finally,

Burlington asserts that the Board is being asked 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, and that

the consent order resulting from that lawsuit governs the response action with respect to Indian

Creek’s property. Reply at 8. Thus, argues Burlington, the complaint should be dismissed.

Id

.

DISCUSSION

Initially, the Board must determine whether to accept Burlington’s reply to Indian

Creek’s response. Pursuant to the Board’s procedural rules, replies are not permitted except as

permitted by the Board to prevent material prejudice. 35 Ill. Adm. Code 101.500(e). The Board

finds that material prejudice will be prevented if the reply is accepted. Accordingly, the Board

grants Burlington’s motion for leave to file, and accepts the reply.

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In deciding a motion to dismiss, the Board considers all well-pleaded facts contained in

the pleading as true

,

and draws all inferences from the facts in favor of the non-movant. People

v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001); Shelton v. Crown, PCB 96-53

(May 2, 1996);

Krautsak v. Patel, PCB 95-143 (June 15, 1995); Miehle v. Chicago Bridge and

Iron Co., PCB 93-150 (Nov. 4,1993). The Board takes all well-pleaded allegations as true in

determining a motion to dismiss. Import Sales Inc. v. Continental Bearings Corp., 217 Ill. App.

3d 893, 577 N.E.2d 1205 (1st Dist. 1991);

see also

Stein Steel, PCB 02-1; Shelton, PCB 96-53;

Krautsack, PCB 95-143; Miehle, PCB 93-150. In addition, dismissal of the complaint is proper

only if it is clear that no set of facts could be proven that that would entitle complainant to relief.

See

Stein Steel, PCB 02-1; Shelton, PCB 96-53; Krautsack, PCB 95-143; Miehle, PCB 93-150.

The Board denies Burlington’s motion to dismiss. While the complaint does concern the

same railroad incident and involve the same respondent as the Kane County lawsuit, neither the

parties nor the violations are the same. As noted earlier, a complaint is duplicative if another

action is pending between the same parties, alleging substantially the same violations, before

another tribunal with power to grant the same relief as the Board.” Lake County Forest Preserve

District v. Neil Ostro, Janet Ostro, and Big Foot Enterprises, PCB 92-80, slip op. at 2 (July 30,

1992).

In this instance, it is undisputed that Indian Creek was not a party to the Kane County

lawsuit, and was not a party to the consent agreement therein. While both complaints allege

violations of Section 12(a) and (d) of the Act, the instant complaint also alleges a violation of

Section 21(e) of the Act. The violations in the instant complaint were discovered during a

November 2000 excavation of Indian Creek’s property. The violations alleged in the instant

complaint are ongoing violations concerning the alleged migration of contamination from

Burlington’s property to Indian Creek’s property. Although the migration may be caused by the

1993 incident at the basis of the Kane County lawsuit, the allegations arising therein would

constitute new and separate violations.

When considering the facts in the complaint as true, and drawing all inferences in favor

of Indian Creek, the Board finds this matter is not duplicative. Accordingly, the motion to

dismiss is denied.

Nothing further in the record persuades the Board that this matter is duplicative or

frivolous, and the Board accepts this case for hearing.

The Board directs the hearing officer to proceed expeditiously to hearing. Among the

hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and

concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete

record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,

if any, including any civil penalty, for the alleged violations.

If a complainant proves an alleged violation, the Board considers the factors set forth in

Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the violation.

See

415

ILCS 5/33(c), 42(h) (2004). Specifically, the Board considers the Section 33(c) factors in

determining, first, what to order the respondent to do to correct an ongoing violation, if any, and,

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second, whether to order the respondent to pay a civil penalty. The factors provided in Section

33(c) bear on the reasonableness of the circumstances surrounding the violation, such as the

character and degree of any resulting interference with protecting public health, the technical

practicability and economic reasonableness of compliance, and whether the respondent has

subsequently eliminated the violation.

If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty

on the respondent, only then does the Board consider the Act’s Section 42(h) factors in

determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may

mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,

whether the respondent showed due diligence in attempting to comply, any economic benefit that

the respondent accrued from delaying compliance, and the need to deter further violations by the

respondent and others similarly situated.

With Public Act 93-575, effective January 1, 2004, the General Assembly changed the

Act’s civil penalty provisions, amending Section 42(h) and adding a new subsection (i) to

Section 42. Section 42(h)(3) now states that any economic benefit to respondent from delayed

compliance is to be determined by the “lowest cost alternative for achieving compliance.” The

amended Section 42(h) also requires the Board to ensure that the penalty is “at least as great as

the economic benefits, if any, accrued by the respondent as a result of the violation, unless the

Board finds that imposition of such penalty would result in an arbitrary or unreasonable financial

hardship.”

Under these amendments, the Board may also order a penalty lower than a respondent’s

economic benefit from delayed compliance if the respondent agrees to perform a “supplemental

environmental project” (SEP). An SEP is defined in Section 42(h)(7) as an “environmentally

beneficial project” that a respondent “agrees to undertake in settlement of an enforcement action

. . . but which the respondent is not otherwise legally required to perform.” SEPs are also added

as a new Section 42(h) factor (Section 42(h)(7)), as is whether a respondent has “voluntary self-

disclosed . . . the non-compliance to the [Illinois Environmental Protection] Agency” (Section

42(h)(6)). A new Section 42(i) lists nine criteria for establishing voluntary self-disclosure of

non-compliance. A respondent establishing these criteria is entitled to a “reduction in the portion

of the penalty that is not based on the economic benefit of non-compliance.”

Accordingly, the Board further directs the hearing officer to advise the parties that in

summary judgment motions and responses, at hearing, and in briefs, each party should consider:

(1) proposing a remedy for a violation, if any, including whether to impose a civil penalty, and

supporting its position with facts and arguments that address any or all of the Section 33(c)

factors; and (2) proposing a civil penalty, if any, including a specific total dollar amount and the

portion of that amount attributable to the respondent’s economic benefit, if any, from delayed

compliance, and supporting its position with facts and arguments that address any or all of the

Section 42(h) factors. The Board also directs the hearing officer to advise the parties to address

these issues in any stipulation and proposed settlement that may be filed with the Board.

IT IS SO ORDERED.

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on March 15, 2007, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board