RECEIVED
BEFORE THE
CLERK'S
OFFICE
ILLINOIS POLLUTION CONTROL BOARD
APR 3.0
2007
Pollution OF
PEOPLE OF THE STATE OF ILLINOIS, )
Boa
d
Complainant,
)
v.
)
PCB 07-16
(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
500 South Second Street
Springfield, IL 62706
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 CSXT's Response to Complainant's Cross Motion
for Summary Judgment on behalf of CSX, Transportation, Inc
. in the above-titled matter.
A copy is hereby served upon you
.
DATED:
April 30, 2007
David L. Rieser
Jeremy R. Hojnicki
McGuireWoods LLP
77 West Wacker Drive, Suite 4100
Chicago, Illinois 60601
(312) 849-8100
CSX TRANSPO' TATION, INC.
'048h,
/ 4- of its
AAA
•S
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 07-16
(Enforcement)
CSX TRANSPORTATION, INC
.,
)
a Virginia corporation,
)
Respondent
.
RESPONDENT CSXT'S RESPONSE TO COMPLAINANT'S
CROSS 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
.500 and 35 Ill .
Admin. Code Section 101
.516 respectfully files this response to the Complainant, People
of the State of Illinois', cross motion for summary judgment
.
The Board must grant a motion for summary judgment when there are no material
facts in dispute and the moving party is entitled to judgment
as a matter of law
. 35
I11.Admin
. Code Section 101 .516
. The Board must consider the pleadings, exhibits and
affidavits in the record in favor of CSXT and it may enter summary judgment only when
it is clear and free from doubt that the People are entitled to judgment as a matter of law
.
Wilder Binding Co
. v. Oak Park Trust and Sav
. Bank, 135 Ill.2d
121, 552 N .E.2d 783
(1990)
. In addition, the Board must consider all the evidence before it strictly against the
People and liberally in favor of CSXT
. Colvin v. Hobart Bros.,
156 II1 .2d 166, 620 N
.E.
2d 375 (1993) .
Here, the People assert no material issues of disputed fact and fail to establish as
a matter of law that the claims against CSXT satisfy the legal requirements of the alleged
RECEIVED
CLERK'S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
Pollution
STATE
APR
OF
3
Control
.0
ILLINOIS
2007
Board
causes of action . Therefore, the Board should enter summary judgment in CSXT's favor
on all three counts alleged in the Complaint . The Board should further deny the People's
request for a hearing to determine a civil penalty since CSXT did not violate any
provisions of the Illinois Environmental Protection Act ("Act").
(415 ILCS 5/1 et. seq. )
ARGUMENT
I.
Absent evidence in the record that the release caused contamination to
waters of the State there can be no violation of Section 12(a) or Section
12(d) of the Act as a matter of law.
The law in Illinois is clear, absent evidentiary proof in the record that the release
caused contamination to waters of the State, there can be no violation of Section 12(a)
(415 ILCS 5/12(a)) or Section 12(d) of the Act (415 ILCS 5/12(d)) .
See Jerry Russell
Bliss, Inc ., v. Illinois Environmental Protection Agency,
138 I11.App.3d 699, 485 N .E.2d
1154 (5' Dist. 1985); see also People v
. Hendricks, PCB 97-31 (1998) .
As stated in CSXT's motion for summary judgment, this case involves an
accidental release of diesel fuel in an industrial rail yard which was immediately and
successfully cleaned up .
See Respondent's MSJ, Exhibit C; see also
Respondent's MSJ,
Exhibit D . The release at the Rose Lake Yard site merely impacted a small area of soil
which was completely remediated consistent with the Act
. Id. It is undisputed that there
is no evidence in the record of any contamination to waters of the State (neither
groundwater nor surface water) as a result of the release
. See Respondent's MSJ at p
. 3-
4
. Accordingly, the People's allegation that CSXT violated Section 12(a) and Section
12(d) of the Act fails as a matter of law
.
On the day of the event, CSXT immediately hired Hulcher Professional Services
("HPS")
to conduct an environmental site remediation to remove soil impacted by the
2
accidental release at the Rose Lake Yard site . See
Respondent's MSJ at p . 2
;
Respondent's MSJ, Exhibit C at p
. 2-3 .
Soil sampling performed by Hulcher to verify
that the remediation was complete showed one soil sample with slightly elevated levels
of a certain PAIL
. CSXT dispatched its environmental consultant, Arcadis, to the site to
collect and analyze soil samples and groundwater to further demonstrate that the
remediation was complete
. All samples were determined to be below TACO
Industrial/Commercial Tier I Remediation Objectives, including soil samples collected in
the exact location of the S4 soil sample . See
Respondent's MSJ, Exhibit C at p
. 5-7 ; see
also Respondent's MSJ, Exhibit D at p
. 5-7
. At the State's insistence, CSXT asked
Arcadis to take additional samples in the area of the only identified exceedance
. These
samples were returned below the TACO soil and groundwater standards as well
. Thus,
the record here shows that the.soil
at the Rose Lake Yard site was completely remediated
by Hulcher within 4 months of the release, consistent with the Act
.
For purposes of determining whether the release violated Section 12(a) and
Section 12(d) of the Act, there must be evidence in the record of contamination to the
waters of the State . See Bliss, 138 I11.App.3d
699, 485 N .E.2d
1154; see also
Hendricks,
PCB 97-31 . In Bliss,
the court held that "a principal draftsman of the Environmental
Protection Act recognized that the mere presence of a potential source of water pollution
on the land does not necessarily constitute a water pollution hazard
."
Bliss,
138
Il1.App
.3d at 703-04 ; 485 N.E.2d
at 1157
. The court held that in order to find that the
defendant violated Section 12(a) and Section 12(d) of the Act there must be proof in the
record that contamination is "present in sufficient quantity or concentrations to constitute
a water pollution hazard ." Bliss,
138 Ill.App.3d at 703-04
; 485 N.E.2d at 1157
. Since in
3
Bliss, the People could not produce evidence of groundwater contamination, the court
ruled that the defendant did not violate of Section 12(a) and Section 12(d) of the Act
. Id.
See also People v. Hendricks, PCB 97-31 (1998) (holding that without evidence of actual
contamination to the waters of the State, the Board cannot find a violation of Section
12(a) of the Act).
It is undisputed that there is no evidence in the record of any water contamination
at the Rose Lake Yard site. All groundwater samples collected and analyzed by Arcadis
at the Rose Lake Yard site were either below laboratory detection limits for TACO
contaminants or below TACO Tier I Class II groundwater Remediation Objectives
. See
Respondent's MSJ, Exhibit C at p
.5-6 and Exhibit D at p . 5-6 .
The People's sole
argument that there was a water pollution threat relies only on a single soil sample, S4,
with a slightly elevated level of the constituent benzo (a) pyrene taken during HPS' site
excavation and the People's unsupported hypothesis that the geologic conditions suggest
that this single soil sample constitutes a threat of water pollution
. As an initial matter,
these hypotheses are not supported by any expert report or even by any statement by the
IEPA. See Matteson WHP Partnership v . Martin's of Matteson,
PCB 97-121 (2000),
affirmed in part, James W. Martin, et al. v. IPCB and Matteson WHP Partnership, No
. 1-
00-2513 (I s' Dist
. 2001) (holding that without the minimum technical requirements to
demonstrate groundwater contamination there cannot be a violation of Section 12(a) of
the Act)
. Although the People attach several affidavits of IEPA personnel, including an
IEPA geologist, none of these are directed to the possibility of water pollution
.
The case primarily relied on by the People is People of the State of Illinois v
. John
Chalmers d/b/a John Chalmers Hog Farm,
PCB 96-111 (2000) . Yet, the Chalmers
4
decision is entirely distinguishable from the present matter because, in that case, the
evidence in the record showed that the defendant caused actual contamination to waters
of the State . Id.
In Chalmers, an IEPA engineer collected surface water samples
downstream from the Chalmers farm on two separate occasions and testified at a hearing
that contaminated water flowed directly from the defendant's property . Id. Since the
evidence in Chalmers
case showed that for approximately two years several thousand
gallons of livestock waste from the defendant's farm caused actual surface water
contamination to a local stream, the Board held that the defendant violated Section 12(a)
and Section 12(d) of the Act . Id.
Not only is the Chalmers
case inapposite to the case here, it actually supports
CSXT's position . In Chalmers,
the Board clearly acknowledged the difference between a
case where water pollution is documented and where it is not, stating that "the mere
presence of a contaminant is insufficient to establish that water pollution has occurred or
is threatened
; it must also 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
." (Citing Bliss, 138 III .App.3d 699, 485 N .E.2d
1154) . Since the
People have failed to make any showing that this single soil sample did or was likely to
create a nuisance or impact the waters of the State in any way, the People's allegation
that CSXT violated Section 12(a) and Section 12(d) fails as a matter of law
.
The People's reliance on Tri-County Landfill Co . v
. Illinois Pollution Control
Board, 41
Ill.App.3d 249, 353 N .E.2d 316, and People of the State of Illinois v
. Petco
Petroleum Corp.,
PCB 05-66 (2005), are similarly misplaced . In both cases, the People
submitted specific data and testimony showing actual groundwater or surface water
5
contamination
. Neither of these cases stand for the proposition that the People attempt to
assert here that a slightly elevated level of PAH in a single soil sample at an active train
yard supports a violation of Section 12(a) and 12(d) of the Act when sampling documents
and environmental reports show that there is no actual groundwater contamination
.
In the absence of any evidence in the record that CSXT caused actual
contamination to waters of the State, the People attempt to argue for actionable water
contamination by stating that the "geology of the Rose Lake Yard site consists of silty
sand soils with groundwater between 2 to 3 feet below surface
." Complainant's MSJ at p .
5
. Not only is this argument unsupported by any technical testimony, it has already been
rejected in far more egregious circumstances
. In Bliss, the Court dismissed as legally
irrelevant the People's claim that the defendant violated Section 12(a) and Section 12(d)
of the Act because there the site had silty sand soils with artesian conditions that caused
groundwater to rise up to the surface . Bliss, 138 Ill.App.3d at 704
; 485 N.E.2d at 1158 .
The Court held that there can be no violation of Section 12(a) or Section 12(d) of the Act
without evidentiary proof in the record that the release caused contamination to waters of
the State
. Here, it is undisputed that there is absolutely no evidence in the record that
CSXT caused contamination to the waters of the State and the only impacts to soil at the
site was completely remediated by CSXT consistent with the Act
. See
Respondent's
MSJ ; Exhibit 3 and Exhibit 4
. Thus, as a matter of law the Board should deny the
People's cross motion for summary judgment and hold that CSXT did not violate Section
12(a) and Section 12(d) of the Act .
6
II.
As
matter of law, the incident here cannot be considered an open
dumping violation .
The statutory language of Section 21 (a) of the Act does not support the People's
allegation of an open dumping violation as a matter of law
. As stated in the People's
Motion for Summary Judgment, the People's only support for their open dumping claim
is the undisputed fact that sampling after the immediate response action showed slightly
elevated levels of two PAH compounds . The People argue that it is not the mere
presence of these compounds which documents the claim, but the allegation that CSXT
"left" these compounds in the soil for nine months. Even assuming that the People's
unsupported assertions that these are components of fuel oil and evidence of the release
are correct, the People do not dispute that CSXT performed no further remediation after
the initial soil removal and that additional sampling at locations directed by the IEPA
failed to show even those slightly elevated levels .
To prove open dumping the People must demonstrate the "consolidation of refuse
from one or more locations at a disposal site ." (415 ILCS 5/3 .305) Yet the People have
not and cannot point to one single case where the language of this definition was
stretched to cover the utterly benign scenario here . Indeed, courts have held that if
"waste is cleared away to another location before it is allowed to be dissipated back into
the environment or emitted into air, or discharged into the water
. . . the site cannot be
regarded as [a] `disposal site, and the prohibition against open dumping will not be
triggered ."
EPA v. Pollution Control Board, 219 I11 .App.3d 975, 579 N .E.2d 1215 (5 m
Dist 1991)
. Here, CSXT's consultant immediately remediated the site by excavating the
impacted soil from the release area. See Respondent's MSJ at p
.2; Affidavit of John
Broadus. Further sampling documented that all material was removed . In no way can
7
CSXT be accused of leaving contaminants in the soil at the site . Therefore, the People's
basis for alleging an open dumping violation under Section 21(a) of the Act fails as a
matter of law .
III .
CSXT's Response to IEPA Correspondence is Irrelevant to any Showing
of Alleged Violation of the Act
The Board may join CSXT in wondering why this case was filed in the first place .
The undisputed facts show that CSXT had a small fuel oil release within the confines of
an active train yard, that it immediately reported that release to IEMA, that it immediately
remediated that release, and that further sampling documented that that the release had
been remediated to the IEPA's satisfaction, all well before this complaint was filed .
What is readily apparent is that the People's concern is not CSXT's immediate response
to the release but the alleged lack of an immediate response to IEPA correspondence . In
its initial complaint, the People alleged the correspondence sent by the IEPA and the lack
of immediate response by CSXT but chose not to describe CSXT's actions in completing
the remediation prior to the time the complaint was filed . The People then stated as a
matter of law in response to CSXT's affirmative defenses, that this lack of immediate
response did not, in and of itself, constitute a violation of the Act . See Complainant's
Answer to Affirmative Defenses at p . 1 . Yet in this motion the People rehash this
correspondence record and devote its three affidavits solely to that issue, while failing to
provide any technical support of its claims of water pollution or open dumping .
These correspondence issues are completely irrelevant to any finding of the Board
with respect to the alleged violations . The People have already taken the legal position
that the lack of timely response to IEPA correspondence is not a violation of the Act and
nothing in the language of Sections 12(a), 12(d), or 21(e) suggests that timely
8
correspondence with the IEPA is an element of proving violations of those claims alleged
here. While such correspondence might be relevant (although certainly not dispositive)
with respect to the penalty factors listed in Section 33(a), these factors do not come into
play until the Board finds that a violation has occurred . This correspondence record
cannot and should not have any bearing on the Board's resolution of this motion .
IV.
Even if the Board Determines that a Violation Occurred, It Could Not
Issue a Penalty.
Even if the Board finds (against the weight of the facts and the law) that CSXT
violated Section 12(a); Section 12(d) ; and Section 21(a) of the Act, no civil penalty
should be issued against CSXT.
It is an undisputed material fact that the site was
completely remediated long before the People filed the instant Complaint against CSXT .
See Respondent's MSJ at p . 2-5 ; see also
Complainant's Answer to Affirmative Defenses
at p. 1 . According to the Illinois Supreme Court, when violations of the Act have ceased
long before the People institute a case before the Board, it is inappropriate to impose a
civil penalty because a penalty would be purely punitive and it would not aid in the
enforcement of the Act . 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 I1l .2d 204, 326 N .E.2d 406 (1975) ; Harris-Hub Co. v. Pollution
Control Board, 50 III .App.3d 608, 365 N .E.2d 1071 (1 5` Dist. 1977); Tri-County Landfill
Company v . Pollution Control Board,
41 I11.App.3d 249, 353 N .E.2d 316 (2nd Dist.
1976)
. While the Board is vested with broad discretionary powers in imposing penalties,
the assessment may not be arbitrary .
Monmouth, 57 I11 .2d 482, 313 N .E.2d 161 (1974)
;
Metropolitan Sanitary District v . Pollution Control Board,
62 I11.2d 38, 338 N .E.2d 392
(1975); CPC International, Inc. v. Pollution Control Board,
24 II1
.App
.3d 203 (3`d Dist
.
9
1974) .
Thus, because the site was completely remediated long before the People filed the
instant Complaint, it would be arbitrary and contrary to longstanding Illinois case law for
the Board to impose a civil penalty against CSXT in this matter .
Wherefore, CSXT respectfully requests that the Board (1) deny the People's cross
motion for summary judgment ; (2) deny the People's request for a hearing to determine a
penalty against CSXT because CSXT did not violate any of the provisions of the Act ;
(3)
enter summary judgment in CSXT's favor ; and (4) dismiss all three counts alleged in the
People's Complaint with prejudice.
Respectfully submitted,
CSX TRANSPORTATION, INC.
10
vi L . eset
One of its Attorneys
Dated :
Af~(,l 30, .-ool
McGuireWoods LLP
77
West Wacker, Suite 4100
Chicago, IL 60601
Telephone : 312/849-8100
\4540677 .1
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondent CSXT's
Response to Complainant's Cross Motion for Summary Judgment upon those listed on
the attached Notice of Filing by first class mail, postage affixed
.
CSX TRANSPORTATION, INC
.
B :
1 01
eof i sA
