Lisa Madigan
Al l RNPI GI(NNR,V .
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 ten copies of a Notice of Filing and Reply
Brief to Respondent's Response to Complainant's Cross Motion for Summary Judgment in regard
to the above-captioned matter . Please file the originals and return file-stamped copies to me in the
enclosed, self-addressed envelope .
Thank you for your cooperation and consideration .
OFFICE OF THE ATTORNEY GENERAL
S"I'A'I'E OF ILLINOIS
May 10, 2007
Re : People v. CSX Transportation, Inc .
PCB No . 07-16
ORIGIN
sten Laughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
KLG/pp
Enclosures
A bECEIVED
MAY 1 5 2007
STATE OF ILLINOIS
pollution Control Board
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
•
'l"IY: (312) 814-3374 •
Fax
: (312) 814-3806
1001 lust hlain, Csrbondale, Illinois 62901 •
(018),529-6400
• 'I" 1'1': (618) 529-64(13 • Fax : (618) 529-6416
BEFORE THE ILLINOIS POLLUTION CONTROL
BfWCEIVED
CLERKS OFFICE
PEOPLE OF THE STATE OF
)
ILLINOIS,
MAY 1 5 2007
)
STATE
ILLINOIS
Complainaa
R I G I N A L
Pollution
OCont
of Board
vs.
)
PCB No. 07-16
(Enforcement)
CSX TRANSPORTATION, INC ., a
)
Virginia corporation,
)
Respondent.
)
NOTICE OF FILING
To:
David L . Rieser
Jeremy R. Hojnicki
McQuire Woods, LLP
77 West Wacker Drive
Suite 4100
Chicago, IL 60601
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, REPLY BRIEF TO RESPONDENT'S RESPONSE TO
COMPLAINANT'S CROSS MOTION FOR SUMMARY JUDGMENT, 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
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : May 10, 2007
1
MATTHEW J. DUNN, Chief
Environmental forcement/Asbestos
Litigation
on
BY :
KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
N
RECEIVEDCLERK'S
OFFICE
CERTIFICATE OF SERVICE
MAY 1 5 2007
STATE OF ILLINOIS
I hereby certify that I did on May 10, 2007, send by First Class Mail,
JtIW®ataer @rfthrd
fully prepaid, by depositing in a United States Post Office Box a true and correct copy of the
following instruments entitled NOTICE OF FILING and REPLY BRIEF TO RESPONDENT'S
RESPONSE TO COMPLAINANT'S CROSS MOTION FOR SUMMARY JUDGMENT
To:
David L . Rieser
Jeremy R. Hojnicki
McQuire Woods, LLP
77 West Wacker Drive
Suite 4100
Chicago, IL 60601
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
risten Laughridge Gale
Assistant Attorney General
This filing is submitted on recycled paper
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK'S
RECEIVEDOFFICE
~JR1RIf`ti'gL
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
vs.
)
No. PCB 07-16
(Enforcement)
CSX TRANSPORTATION, INC
., a
)
Virginia corporation,
)
Respondent .
)
MAY 1 5 2007
Pollution
STATE OF
Control
ILLINOISBoard
REPLY BRIEF TO RESPONDENT'S RESPONSE TO COMPLAINANT'S
CROSS MOTION FOR SUMMARY JUDGMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois ("People"), pursuant to Section 101
.500 of the Illinois Pollution
Control Board's ("Board") Procedural Rules, 35 III
. Adm . Code 101
.500 and by leave of the
Board Hearing Officer, hereby replies to arguments and statements by the Respondent, CSX
TRANSPORTATION, INC
., in their Response Brief dated April 30, 2007
:
a)
Remediation of the diesel fuel release was remediated almost two years
after the release, causing and threatening water pollution and creating a
water pollution hazard .
Respondent asserts the untenable position that the diesel fuel release was remediated
four months after the release of diesel fuel
. As Respondent's own exhibit A shows, constituents
of the diesel fuel, benzo (a) pyrene, benzo (b) fluoranthene, and indeno (1,2,3-cd) pyrene, were
left in the soil at the diesel spill location in October 2004
. In fact, the soil sample exceeded the
Tier 1 soil remediation objective for industrial/commercial ingestion for benzo (a) pyrene
. Then
Respondent did nothing at the site for over nine months
. By leaving contamination at the site
I
for over a year after the release, Respondent left contaminants in such proximity and quantity to
the groundwater that they threatened the groundwater and
potentially rendered the it harmful .
Therefore, Respondent threatened and caused water pollution of the groundwater .
The TACO standards were created to set forth standards to evaluate the risk to human
health and for adequate protection of the environment . 35 III .Adm .Code 742 .100 . In developing
the remediation objectives, one of the key elements addressed is exposure routes, including
groundwater ingestion . 35 III .Adm .Code 742 .115. The groundwater ingestion exposure route
includes migration from soil to groundwater. Id. The regulations therefore not only recognized
that contaminants can migrate from soil to the groundwater, but based the remediation
objectives upon that fact . Therefore, no affidavit supporting the statement that the presence of
the contaminates in the silty soil where the groundwater is recorded at 2 to 3 feet below level
surface (bls) is required . By the very nature that the soil sample contained contaminates above
the TACO standard, there was a risk to the environment,
specifically the groundwater .
If
however, the Board finds that an expert is required to show that the contaminants Respondent
left in the soil migrated to the groundwater located at 2 to 3 feet bls, then the Board must find
there is a material issue of fact .
The assertion that the groundwater samples taken by Respondent
showed no
contamination and therefore there was no contamination holds no merit . The groundwater
samples were taken in October 2005, over a year after the release occurred
. Therefore, the
sample results merely show that the contaminates were no longer in the groundwater a year
after the release of diesel fuel .
In Jerry Bliss v
. Environmental Protection Agency, 138 III
.App .3d 699, 704, 485 N .E .2d
1154, 1157 (1985), the Court stated that there was no effort by the State to show that the
presence of the pollutants was likely to render the waters harmful . The People have made that
2
effort in this case
. Respondent is improperly limiting the statutory language under the Act and
the case law interpreting it
.
In Bliss, and other cases interpreting Section 12(a), including
People of the State of Illinois v. John Chalmers d/bla John
Chalmers Hog Farm, PCB 96-111
(January 6, 2000), the standard is "likely to render the waters harmful ." Contrary to
Respondent's assertions, there is no requirement that there be evidence of contamination of
waters of the State
. What is required is evidence that contamination is present in sufficient
quantity or concentration to likely create a nuisance or render the waters harmful, detrimental,
and injurious . Bliss 138 III .App .3d at 704 . Furthermore, the language in Section 12(a), 415
ILCS 5/12(a), states that "no person shall cause or threaten or allow the discharge of any
contaminants into the environment . . ." The People have pled that "residual contamination of soil
and/or subsurface strata may be a continuing source of further releases to the waters of the
State, including groundwater" and that by releasing the diesel fuel, Complainant threatened and
caused water pollution . Complainant's complaint, p. 3-4 . People have shown that diesel fuel
was released into the environment, that Respondents
left constituents of the diesel fuel in the
environment for over a year, that groundwater is located 2 to 3 feet below surface level and the
soil is silty sand from 2 to 6 feet
. The People have shown that Respondent had a release in
such proximity and concentration potentially rendering
the waters harmful, and threatening
water pollution .
The severity of a release of diesel fuel is not a factor in determining a violation, and any
assertion must be disregarded . The Act does not allow for a gradation of harm in evaluating
whether a violation occurred . ESG Watts, Inc . v. Illinois Pollution Control Board, 282 III .App .3d
43, 668 N.E .2d 1015 (1996) . That analysis is only proper for determining the size of the
penalty . Id. By causing or allowing a release of diesel fuel and then knowingly leaving
constituents of the fuel, benzo (a) pyrene, benzo (b) fluoranthene,
and indeno (1,2,3-cd)
3
pyrene, in the soil, Respondent threatened water pollution
. Therefore, Respondent threatened,
caused or allowed water pollution in violation of Section 12(a) of the Act, 415 ILCS 12(a)
.
Respondent's statement that
Tri-County Landfill Co . v
. Illinois Pollution Control Board,
41 III .App
.3d 249, 258, 353 N .E
.2d 316, 324 (1976) stands for the position that it must be
shown that there is actual groundwater contamination is a misrepresentation of that case
. In
fact, the court in Tri-County
rejected the landfill's assertion that the Illinois EPA show that
pollution of a lower aquifer will occur
. Id.
The Court held that a water pollution hazard, under
Section 12(d) of the Act, 415 ILCS 12(d), is where "the conduct may endanger the safety of the
citizens" and there is no assurance that it will not, although a change in conduct could make
that assurance forthcoming
. In this case, Respondent released 400-500 gallons of diesel fuel
and then knowingly left constituents of the fuel, benzo (a) pyrene, benzo (b) fluoranthene, and
indeno (1,2,3-cd) pyrene, in the soil for over a year, in a location where the groundwater is
found at 2 to 3 feet bls
. There is no assurance that this release of diesel fuel and leaving the
pollutants in the soil, did not endanger the safety of the citizens
. Therefore, Respondent
caused and threatened a water pollution hazard in violation of 12(d) of the Act, 415 ILCS
5/12(d) (2004) .
b.
Respondent allowed contaminates to dissipate back into the environment,
causing or allowing open dumping
Respondent caused a release of 400-500 gallons of diesel fuel, it then performed some
excavation, but, as shown by their own sampling, the excavation was insufficient
.
Contaminants, benzo (a) pyrene, benzo (b) fluoranthene, and indeno (1,2,3-cd) pyrene,
remained in the soil
. However, instead following through on the remediation, Respondent left
the contaminates in the soil and allowed them to dissipate back into the environment
. The
same analysis advanced in
EPA v . Pollution Control Board,
219 III .App.3d 975, 579 N
.E .2d
4
1215 (1991) applies here . Respondent did not clear away to another location all of the spilled
diesel fuel
. Instead, the constituents, as evidenced by Respondent's own confirmatory
samples, were allowed to dissipate into the environment . The additional sampling directed by
Illinois EPA whose results were below the TACO standards, was performed almost two years
after the initial release .
Respondent again improperly tries to assert that its release of diesel fuel into the
environment was benign
. The Act does not allow for any consideration of the gradation of harm
when evaluating a violation of the Act, only whether a violation occurred . The severity of a
violation is only considered when determining a penalty for a violation
. 415 ILCS 5/42 (2004) .
Respondent's repeated assertions regarding the severity of their violations of the Act must be
ignored .
As in
EPA v
. Pollution
Control Board, the diesel spill site became a disposal site when
Respondent left the constituents of a waste, the diesel fuel, in the soil
. Therefore, Respondent
open dumped waste in violation of Section 21 (a) of the Act, 415 ILCS 5/21 (a) (2004) .
c.
Respondent's lack of due diligence and self-disclosure are not factors to
consider when finding a violation of the Act
Respondent released 400-500 gallons of diesel fuel
. Contamination remained at the
site for at least a year, although remediation of the site was not confirmed until almost two
years after the release
. These are the only factors the Board should consider when
determining whether a violation occurred
. The People could not agree more with Respondent
that Respondent's lack of self-disclosure and due diligence in remediating the site should not be
part of the evaluation that a violation occurred
. The People included those additional facts
regarding Respondent's lack of diligence and self-disclosure to rebut all of Respondent's
assertions that the site was properly remediated and it was diligent in that remediation .
5
Respondent need look no further then themselves to why this case was filed
. Respondent
released a waste into the environment and failed to properly remediate that release
.
Respondent seems to be asserting the position that as long as a violator informs the Illinois
EPA that the remediation efforts they took were sufficient, even though the data shows
otherwise, then the Illinois EPA should merely accept that assertion and not perform its
statutory duty under the Act to investigate any violations of the Act
. 415 ILCS 5/4 (2004)
.
d.
Subsequent compliance is not a bar to finding a violation nor issuing a penalty
Section 33(a) of the Act, 415 ILCS 5/33(a) (2004), was amended in 1988 by Public Act
85-1041 . 1988 III
. Legis. Serv . P.A
. 85-1041 (West)
. All of the cases that Respondent cites to
shore up its position were issued the decade before Section 33(a) was amended
. Section 33(a)
explicitly prohibits the defense to finding a violation or imposing a penalty if a person
subsequently complies with the violation
. This is so clear that the Board repeatedly strikes that
defense pursuant to Section 33(a) when the defense is asserted as an affirmative defense by a
Respondent . See
People of the State
of Illinois v
. Chevron Environmental Services Co., PCB
02-03 (Nov . 6, 2003);
People of the State of Illinois v
. Marc Development Corp
. and Silver Glen
Estates HomeOwners'Assoc .,
PCB 01-150 (July 26, 2001)
. The First District, citing Section
33(a), has also disregarded a Respondent's claim that subsequent compliance barred the
finding of a violation and the imposition of penalty
. Discovery South Group, Ltd
. v. Pollution
Control Bd. 275 III
.App.3d 547, 656 N
.E .2d 51, 211 III .Dec. 859, (1st Dist
. 1995) .
The Board has issued and a Court has upheld a penalty for past violations
. In
Modine
Manufacturing Co . v
. Pollution Control Board, 193 III
.App .3d 643, 549 N
.E. 1379 (1990), Modine
made the same contention as Respondent
. Modine contended that a penalty would not aid in
the enforcement of the Act because it was no longer in violation of the Act at the time the
6
complaint was filed with the Board . Id. The Court disagreed . Id The Court not only found that
penalties may be imposed for wholly past violations,
but upheld the Board's decision to impose
a penalty. Id.
Furthermore, all of the decisions Respondent cites pre-date Section 42(h) of the Act,
415 ILCS 5/42(h) (2004) . By the addition of the 42(h) factors, even if compliance is achieved, a
penalty may still be necessary . ESG Watts, Inc. V
. Illinois Pollution Control Board, 282
III .App .3d 43, 668 N .E .2d 1015 (1996)
. The deterrent effect of penalties on the violator and
other potential violators is a legitimate goal for the Board to consider
. Id at 52 .
Regardless the issue before the Board is not whether the Respondent eventually
remediated the release nor the amount of penalty to be
assessed . The issue is whether the
respondent violated the Act when it released 400-500 gallons
of diesel fuel threatening water
pollution, creating a water pollution hazard, and open dumping waste . By Respondent's own
admission and exhibits, as well as the People's exhibits,
the evidence shows that Respondent
released pollutants into the environment threatening water pollution and creating a water
pollution hazard in violation of Section 12(a) and
12(d) and caused or allowed open dumping in
violation of Section 21(a) . The material facts proving these violations and liability in this case
are not in dispute .
7
WHEREFORE, Complainant, People of the State of Illinois, respectfully requests
that the Board enter a final order :
A)
Granting Complainant's motion for summary judgment ;
B)
Finding that the Respondent, CSX TRANSPORTATION, INC ., violated Sections
12(a), 12(d), and 21 (a) of the Act, 415 ILCS 5/21 (a), (d),
21 (a) (2004) ;
C)
Schedule hearing to determine the penalty for Respondent's violations under
Section 33 and 42 of the Act, 415 ILCS 5/33, 42 (2004) .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel. LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J
. DUNN, Chief
Environment
nforcement/Asbestos
Lilt
lion Di,pion
TEN LAUGHRIDGE GALE
nvironmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-903)
.-~
Dated :_
'57 /o/6
-f-
8
