Lisa Madigan
N1 IORNEY UENERAI
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 one copy of a Notice of Filing, Motion for
Relief from Hearing Requirement and Stipulation and Proposal for Settlement in regard to the
above-captioned matter . Please file the originals and return file-stamped copies to me in the
enclosed envelope .
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
April 16, 2007
Re :
People v. CSX Transportation, Inc.
PCB No. 06-51
Thank you for your cooperation and consideration .
Very truly yours,
Ifntisten Laughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
RECEIVEDCLERK'S
OFFICE
APR 1 9 2007
Pollution
STATE OF
Control
ILLINOISBoard
1001 Fast Mlmn
. Cnrhondalc . Illinois 63901 • (618) 529-6400 •
TTY, (618) 529-6403 • Fax (618) 929-6416
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 •
"I"TY : (312) 814-3374
•
Fax : (312) 814-3806
6; E s0 f%VECE'0
APR
's
pfoi"rS
B
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
v.
)
PCB No . 06-51
(Enforcement
- Air, Water, Land)
CSX TRANSPORTATION, INC .,
)
a Virginia corporation,
)
Respondent
.
)
9 2001
To:
David L . Rieser
McGuire Woods LLP
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, a MOTION FOR RELIEF FROM HEARING REQUIREMENT
and STIPULATION AND PROPOSAL FOR SETTLEMENT, copies of which are attached hereto
and herewith served upon you .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
NOTICE OF FILING
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : April 16, 2007
MATTHEW J
. DUNN, Chief
Environment,.FEnforce ent/
estos
Litigation Division
nY:
KRISTEI/~A HRIDGE GALE
/
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on April 16, 2007, 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, MOTION FOR RELIEF FROM HEARING
REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT :
To:
David L . Rieser
McGuire Woods LLP
77 West Wacker Drive
Suite 4100
Chicago, IL 60601-1818
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
G
t
KkISYTN LAUGHRIDGE GALE
ssistant Attorney General
This filing is submitted on recycled paper .
V .
CSX TRANSPORTATION, INC
.,
a Virginia corporation,
Respondent
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PCB No . 06-51
(Enfo j
t -
Air, Water, Land)
j
pE~S'
lce
)
APR 1 g 2001
STATEO¢
controliLLINotsBoard
Pollution
MOTION FOR RELIEF FROM HEARING REQUIREMENT
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and pursuant to Section 31 (c)(2)
of the
Illinois Environmental Protection Act
("Act"), 415 ILCS 5/31(c)(2) (2004), moves that the Illinois
Pollution Control Board grant the parties in the above-captioned matter relief from the hearing
requirement imposed by Section 31(c)(1) of the Act, 415 ILCS 5/31(c)(1) (2004)
. In support of
this motion, Complainant states as follows
:
1 .
The parties have reached agreement on all outstanding issues in this matter
.
2
.
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion
.
3 .
All parties agree that a hearing on the Stipulation and Proposal for Settlement is
not necessary, and respectfully request relief from such a hearing as allowed by Section
31(c)(2) of the Act, 415 ILCS 5/31(c)(2) (2004)
.
1
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
that the Board grant this motion for relief from the hearing requirement set forth in Section
31(c)(1) of the Act, 415 ILCS 5/31(c)(1) (2004) .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J
. DUNN, Chief
EnvironmentalEnforcement/Asbestos
Liti tion D's°ion
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : April 16, 2007
2
BY:,
KRISTEN LAUGHRIDGE GALE
Environmental Bureau
Assistant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
C
SXTransportation, Inc ., a Virginia
)
)REC
PCB
E
No
1
.
'
06-
1
)
c
~rcement-Air, Water, Land)
corporation,
)
APR 1
s 2007
Respondent .
)
poPollution
OContrOINB o
ad
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois, the Illinois Environmental Protection Agency ("Illinois EPA"),
and CSX TRANSPORTATION, INC. ("Respondent"), have agreed to the making of this
Stipulation and Proposal for Settlement ("Stipulation") and submit it to the Illinois Pollution
Control Board ("Board") for approval . The parties agree that the statement of facts contained
herein represents a fair summary of the evidence and testimony which would be introduced by
the parties if a hearing were held . The parties further stipulate that this statement of facts is made
and agreed upon for purposes of settlement only and that neither the fact that a party has entered
into this Stipulation, nor any of the facts stipulated herein, shall be introduced into evidence in
any other proceeding regarding the claims asserted in the Complaint except as otherwise
provided herein . If the Board approves and enters this Stipulation, Respondent agrees to be
bound by the Stipulation and Board Order and not to contest their validity in any subsequent
proceeding to implement or enforce their terms .
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and of the parties consenting
hereto pursuant to the Illinois Environmental Protection Act
("Act"), 415 ILCS 5/1 et seq
.
(2004) .
It
. AUTHORIZATION
The undersigned representatives for each party certify that they are fully authorized by the
party whom they represent to enter into the terms and conditions of this Stipulation and to legally
bind them to it .
III. STATEMENT OF FACTS
A.
Parties
1 .
On October 14, 2005, a Complaint was filed on behalf of the People of the State
of Illinois by Lisa Madigan, Attorney General of the State of Illinois, on her own motion and
upon the request of the Illinois EPA, pursuant to Section 43 of the Act, 415 ILCS 5/43 (2004),
against the Respondent .
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415 ILCS 5/4 (2004)
.
3.
At all times relevant to the Complaint, The Respondent, CSX
TRANSPORTATION, INC
., was a Virginia corporation in good standing .
B.
Site Description
1 .
On December 22, 2004 at approximately 7
:30 AM, thirteen engines and cars of a
1
55-car train owned by the Respondent derailed into a fans field about one mile north of
downtown Paris, Edwards County, Illinois ("derailment site")
.
2.
Three derailed engines breached and released approximately 5,700 gallons of
diesel fuel. One car containing hydrochloric acid ("HCI") breached and released approximately
20,700 gallons of HCI .
3 .
The HCl release caused an airborne HCI plume and a HCI spill at the derailment
site
. Due to the presence of the airborne HCI plume, the City of Paris Fire Department and
Illinois EPA ordered evacuations of approximately 250 people within approximately one mile
radius of the derailment site .
4 .
The releases occurred approximately 300 yards from Twin Lakes, which provides
drinking water for the community of Paris, Illinois
. A marshy wooded area and an unnamed
creek, which drains into Twin Lakes, were between the derailment site and Twin Lakes . The
unnamed creek is approximately 200 yards southwest of the derailment site.
C .
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act:
Count I:
Air Pollution, in violation Section 9(a) of the Act, 415 ILCS 5/9(a) (2004) .
Count II :
Abandonment of Waste, in violation of Section 21(e) of the Act, 415 ILCS
5/21(e) (2004) .
Count III:
Water Pollution Hazard, in violation of Section 12(d) of the Act, 415 [LCS
5/12(d)(2004) .
D.
Non-Admission of Violations
The Respondent represents that it has entered into this Stipulation for the purpose of
settling and compromising disputed claims without having to incur the expense of contested
litigation
. By entering into this Stipulation and complying with its terms, the Respondent does
not affirmatively admit the allegations of violation within the Complaint and referenced within
Section III .C herein, and this Stipulation shall not be interpreted as including such admission
.
E .
Compliance Activities to Date
On December 22, 2004, emergency environmental contractors hired by the
Respondent arrived at the derailment site and began remediation efforts including building berms
to contain the HCI and diesel fuel and digging an interceptor trench .
2 .
On December 22, 2004, environmental contractors began monitoring the air for
HCl and volatile organic compounds at the work area in the derailment site and in the
surrounding community within a mile radius . The air monitoring continued until December 24,
2004
. On December 22, 2004, the airborne HCI concentrations within the work area ranged from
0.0 ppm to 1 .2 ppm. The Occupational Safety and Health Administration ceiling for airborne
HCl is 5 ppm
. Airborne HCI was not detected within the work area on December 23, 2004 or
December 24, 2004
. Airborne HCI was detected at two community locations on December 22,
2004, at concentrations of 0 .39 ppm and 0 .34 ppm
. The lowest public exposure value for HCl is
0
.5 ppm, set by the Department of Energy's Temporary Emergency Exposure Limit -
0 ("TEEL-
0"). Airborne HCl was not detected in the surrounding community on December 23, 2004 or
December 24, 2004 .
3
3 .
From December 23, 2004 until May 9, 2005, Respondent inspected the
derailment site, at first on a daily basis and reduced in intervals as the site conditions improved .
4.
Respondent installed three interceptor trenches at the derailment site to collect
diesel fuel and HCl . From December 23, 2004 until January 21, 2005, Respondent vacuumed the
trenches for diesel fuel and HCI daily . From January 21, 2005 until May 9, 2005, Respondent
vacuumed the trenches on an as needed basis per the inspections .
5 .
Respondent placed booms in nearby woods, creek and Twin Lakes . From
December 23, 2004 until May 9, 2005, the booms were removed and replaced on an as needed
basis .
6 .
Respondent performed a site investigation including soil sampling, groundwater
sampling and surface water sampling
. The soil samples taken from the HCl impacted area were
analyzed for nutrients, pH, and total chloride . The soil samples taken from the diesel fuel area
were analyzed for benzene, toluene, ethylbenzene, and xylene
("BTEX"), methyl tertiary butyl
ether ("MTBE"), and polynucleic acids
("PNAs") . The groundwater samples and surface water
samples were analyzed for BTEX, MTBE, and PNAs . Sampling within the spill area for diesel
met Tier I residential soil and groundwater objectives, and sampling of the HCl spill area
demonstrated that soils would be suitable for agricultural purpose
.
7 .
Respondent sampled the groundwater on April 13, 2005, December 20, 2005, and
March 9, 2006
. All of the results were below the method detection limits for BTEX and PNAs .
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the Respondent,
4
and any officer, director, agent, or employee of the Respondent, as well as any successors or
assigns of the Respondent
. The Respondent shall not raise as a defense to any enforcement
action taken pursuant to this Stipulation the failure of any of its officers, directors, agents,
employees or successors or assigns to take such action as shall be required to comply with the
provisions of this Stipulation
.
V. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of the Respondent to comply with
any other federal, state or local laws or regulations including, but not limited to, the Act and the
Board regulations, 35 Ill . Adm. Code, Subtitles A through H
.
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(e)(2004), provides as follows
:
In making its orders and determinations, the Board shall take into consideration
all the facts and circumstances bearing upon the reasonableness of the emissions,
discharges, or deposits involved including, but not limited to :
1 .
the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of
the people;
2 .
the social and economic value of the pollution source ;
3 .
the suitability or unsuitability of the pollution source to the area in
which it is located, including the question of priority of location in
the area involved ;
4.
the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits
resulting from such pollution source
; and
5
5 .
any subsequent compliance .
In response to these factors, the Complainant states the following
:
1 .
Human health and the environment were threatened and the Illinois EPA's
information gathering responsibilities were hindered by the Respondent's violations
.
2 .
There is social and economic benefit to railroads and trains
.
3 .
Operation of the railroad and train was suitable for the area in which it occurred
.
4 .
Timely remediation of the release is both technically practicable and economically
reasonable .
Respondent engaged in response activity to comply with the Act
.
VII
. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2004), provides as follows
:
In determining the appropriate civil penalty to be imposed under . .
. this Section,
the Board is authorized to consider any matters of record in mitigation or
aggravation of penalty, including but not limited to the following factors
:
the duration and gravity of the violation ;
2 .
the presence or absence of due diligence on the part of the respondent in
attempting to comply with requirements of this Act and regulations thereunder or
to secure relief therefrom as provided by this Act ;
3.
any economic benefits accrued by the respondent because of delay in compliance
with requirements, in which case the economic benefits shall be determined by the
lowest cost alternative for achieving compliance ;
4.
the amount of monetary penalty which will serve to deter further violations by the
respondent and to otherwise aid in enhancing voluntary compliance with this Act
by the respondent and other persons similarly subject to the Act ;
the number, proximity in time, and gravity of previously adjudicated violations of
6
this Act by the respondent
;
6.
whether the respondent voluntarily self-disclosed, in accordance with subsection i
of this Section, the non-compliance to the Agency
; and
7.
whether the respondent has agreed to undertake a "supplemental environmental
project," which means an environmentally beneficial project that a respondent
agrees to undertake in settlement of an enforcement action brought under this Act,
but which the respondent is not otherwise legally required to perform
.
In response to these factors, the Complainant states as follows :
1 .
The derailment of the Respondent's train caused, allowed or threatened air
.
pollution and posed a water pollution hazard
. Respondent's failure to timely respond to the
migration of the release caused or allowed abandonment of waste
. The violations began on
December 22, 2004, and were individually resolved at various times within two months of the
releases
.
2.
Respondent was diligent in attempting to come back into compliance with the
Act, Board regulations and applicable federal regulations .
3 .
No economic benefit was gained by the derailment of the Respondent's train and
the subsequent remediation .
4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Eighty Thousand Dollars ($80,000.00)
will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations
.
5.
To Complainant's knowledge, Respondent has no previously adjudicated
violations of the Act .
6.
Respondent timely reported the derailment and release to Illinois EPA and all
other state and local authorities .
7
7.
The settlement of this matter does not include a supplemental environmental
project.
VIII. TERMS OF SETTLEMENT
A.
Penalty Payment
The Respondent shall pay a civil penalty in the sum of Eighty Thousand Dollars
($80,000
.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation
.
The penalty described in this Stipulation shall be paid by certified check or money order to the
Illinois EPA, designated to the Illinois Environmental Protection Trust Fund ("EPTF") and
submitted to
:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
The name and number of the case shall appear on the check
. A copy of the certified check or
money order and any transmittal letter shall be sent to
:
Kristen Laughridge Gale
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
2.
Kyle Nash Davis
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O . Box 19276
Springfield, Illinois 62794-927(
Pui:aiant
to Section 42(g) of the Act, 415 ILLS 5/42(g) (2004), interest shall
8
accrue on any payment not paid within the time period prescribed above at the maximum rate
allowable under Section 1003(a) of the Illinois Income Tax Act, 35 ILCS 5/1003 (2004)
. Interest
on any unpaid payment shall begin to accrue from the date the payment is due and continue to
accrue until the date payment is received
. When partial payment(s) are made, such partial
payment shall be first applied to any interest on unpaid payment then due and owing
. All interest
on payment owed shall be paid by certified check or money order payable to the Illinois EPA,
designated to the Illinois Environmental Protection Trust Fund and delivered to the address and
in the manner described above .
3 .
For purposes of payment and collection, Respondent may be reached at the
following address :
David L . Rieser
McGuire Woods LLP
77 West Wacker Drive
Suite 4100
Chicago, Illinois 60601-1818
4.
In the event of default of this Section VIII
.A, the Complainant shall be entitled to
all available relief including, but not limited to, reasonable costs of collection and reasonable
attorney's fees .
B.
Future Use
Notwithstanding any other language in this Stipulation to the contrary, and in
consideration of the mutual promises and conditions contained in this Stipulation, including the
Release from Liability contained in Section VII1 .F, below, the Respondent hereby agrees that this
Stipulation may be used against the Respondent in any subsequent enforcement action or permit
9
proceeding as proof of a past adjudication of violation of the Act and the Board Regulations
promulgated thereunder for all violations alleged in the Complaint in this matter, for purposes of
Section 39(a) and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or 5/42(h)(2004)
.
Further, Respondent agrees to waive any rights to contest, in any subsequent enforcement action
or permit proceeding, any allegations that these alleged violations were adjudicated
. This waiver
does not in any way prevent Defendant from arguing in a future proceeding that the prior
adjudication of this matter should not result in any increase in penalty or other enforcement
.
C.
Cease and Desist
The Respondent shall cease and desist from future violations of the Act that were the
subject matter of the Complaint as outlined in Section III.C
("Allegations of Non-Compliance")
of this Stipulation
.
D .
Release from Liability
In consideration of the Respondent's payment of the $80,000
.00 penalty and any specified
costs and accrued interest, completion of all activities required hereunder, to Cease and Desist as
contained in Section VIII
.E and upon the Pollution Control Board's acceptance and approval of
the terms of this Stipulation and Proposal for Settlement, the Complainant releases, waives and
discharges the Respondent from any further liability or penalties for violations of the Act and
Board Regulations that were the subject matter of the Complaint herein
. The release set forth
above does not extend to any matters other than those expressly specified in Complainant's
Complaint filed on October 14, 2005
. The Complainant reserves, and this Stipulation is without
10
prejudice to, all rights of the State of Illinois against the Respondent with respect to all other
matters, including but not limited to, the following
:
a.
criminal liability ;
b.
liability for future violation of state, federal, local, and common laws and/or
regulations ;
c.
liability for natural resources damage arising out of the alleged violations ; and
d.
liability or claims based on the Respondent's failure to satisfy the requirements of
this Stipulation .
Nothing in this Stipulation is intended as a waiver, discharge, release, or covenant not to
sue for any claim or cause of action, administrative or judicial, civil or criminal, past or future, in
law or in equity, which the State of Illinois or the Illinois EPA may have against any person, as
defined by Section 3 .315 of the Act, 415 ILCS 5/3
.315, or entity other than the Respondent
.
E.
Correspondence, Reports and Other Documents
Any and all correspondence, reports and any other documents required under this
Stipulation, except for payments pursuant to Sections VIII
.A ("Penalty Payment") and C
("Stipulated Penalties") of this Stipulation shall be submitted as follows :
As to the Complainant
Kyle N. Davis
Assistant Counsel
Illinois EPA
1021 North Grand Avenue East
P
.O
. Box 19276
11
Springfield, Illinois 62794-9276
Yeric Yarrington
Illinois EPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
As to the Respondent
David L . Rieser
McGuire Woods LLP
77 West Wacker Drive
Suite 4100
Chicago, Illinois 60601-18 18
F.
Modification of Stipulation
The parties may, by mutual written consent, agree to extend any compliance dates or
modify the terms of this Stipulation
. A request for any modification shall be made in writing and
submitted to the contact persons identified in Section VILLA
. Any such request shall be made by
separate document, and shall not be submitted within any other report or submittal required by
this Stipulation
. Any such agreed modification shall be in writing, signed by authorized
representatives of each party, and then accompany a joint motion to the Illinois Pollution Control
Board seeking a modification of the prior order approving and accepting the Stipulation to
approve and accept the Stipulation as amended .
G.
Enforcement of Board Order
Upon the entry of the Board's Order approving and accepting this Stipulation and
Proposal for Settlement, that Order is a binding and enIbrccable order of the Illinois Pollution
12
Control Board and may be enforced as such through any and all available means
.
2.
Respondent agrees that notice of any subsequent proceeding to enforce the Board
Order approving and accepting this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement of service of process
.
3.
The parties agree that, if the Board does not approve and accept this Stipulation
and Proposal for Settlement, then neither party is bound by the terms herein .
4.
It is the intent of the Complainant and Respondent that the provisions of this
Stipulation and Proposal for Settlement and any Board Order accepting and approving such shall
be severable, and should any provision be declared by a court of competent jurisdiction to be
inconsistent with state or federal law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect .
13
BY:
BY :
WHEREFORE, Complainant and Respondent request that the Board adopt and accept the
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Chief Legal Counsel
CSX TRANSPORTATION, INC .
Name :
%JZ-, /~) >t.,rii
ai> >i 5z
Title :
E1L-///r
-
1 : ; SyS-I C,
-
14
DATE : 3/Z~ /07
DATE: i 7
foregoing Stipulation and Proposal for Settlement as
written .
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
THOMAS DAVIS, Chief
~//`6
/&
DATE :
.~
Environmental Bureau
Assistant Attorney General
