BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

INDIAN

CREEK DEVELOPMENT COMPANY, )

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,

)

The BURLINGTON NORTHERN

SANTA FE

)

RAILWAY COMPANY, a Delaware Corporation)

)

Respondents.

)

PCB- 07-44

Citizen's Enforcement

§21(e), §12(a), §12(d)

NOTICE OF FILING AND PROOF OFSERVICE

TO: See Attached Service List

PLEASE TAKE NOTICE that on June 25, 2007, the attached document,

Complainant's Motion to Strike Burlington Northern and Santa Fe's Affirmative

Defenses, 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 25

day of June,

2007, with proper postage affixed.

Indian Creek Development Company and

Chicago Land Trust Company

tlu/t

3291,

dated December 15, 1981

By~eS~

One of Its Attorneys

F:IPCB Enforcement ActionlPleadings. Filedl19] Not. of Filing - Mot. to Strike BNSF A.D .. doc

PRINTED ON RECYCLED PAPER

Service

List

INDIAN CREEK DEVELOPMENT COMPANY,

Complainant,

vs.

PCB- 07-44

The

BURLINGTON NORTHERN SANTA FE

RAILWAY COMPANY, a Delaware Corporation

Respondents.

Citizen's Enforcement

§21(e), §12(a), §12(d)

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

Thompson Ctr., Ste. 11-500

100 W. Randolph Street

Chicago,

Illinois 60601

(312) 814-8917

(312) 814-3669 -

Facsimile

Nancy Tikalsky

Environmental Enforcement/Asbestos Litigation

Division

100 W. Randolph Street

Chicago,

Illinois 60601

312-814-6986

312-814-2347 - Facsimile

Envirionmental Bureau of the

lliinnois Attorney

General

69 West Washington Street

Sutie 1800

Chicago, Illinois 60602

312-814-0660

F:IPC8 Enforcement ActionlService Ust.doc

PRINTED ON RECYCLED PAPER

Dorothy M. Gurm

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

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

INDIAN CREEK DEVELOPMENT COMPANY,

)

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.

THE BURLINGTON NORTHERN AND SANTA FE

RAILWAY COMPANY, a Delaware Corporation,

Respondent.

)

FieCE'

CLERK'S oX:,aP

JU,\/

2 5

2007

STATEOFIL

PCB- 07-44

Pollution

Contr~l~OIS

Citizen's Enforcement

oard

§21(e),

§12(a), §12(d)

COMPLAINANT'S MOTION TO STRIKE BURLINGTON

NORTHERN AND

SANTA FE'S AFFIRMATVE DEFENSES

Complainant, Indian Creek

Development Company, and the Chicago Title and

Trust Company as trustee under trust 3291, dated December 15, 1981,

(collectively

"Indian Creek"),

moves to strike the affirmative defenses of Respondent, Burlington

Northern and

Santa Railway Company ("BNSF"). In support thereof, Indian Creek

states as follows:

INTRODUCTION

This matter involves a release of diesel fuel on January 20, 1993 on the BNSF

Property

which is owned and operated by the BNSF. The Complaint alleges that

property owned by

Indian Creek ("Indian Creek Property") continues to receive soil and

groundwater contamination

flowing from the BNSF Property fourteen (14) years after

the release (Complaint,

Paragraphs 11,17,24,37). In 1996, prosecutors filed a civil

enforcement action in Circuit Court and obtained a consent decree against the BNSF

which expressly denies rights of third parties and precludes enforcement by third parties

such as

Indian Creek (Consent Order (Complaint Exhibit A), Pages 2, 30 at Paragraph

K). The Consent Order acknowledges that the BNSF has not fully remediated the

diesel fuel contamination on the BNSF Property and requires the BNSF to identify

potential pathways of migration of the diesel fuel, contaminated soil and groundwater

along with the identification of potentially affected human and environmental receptors.

(Consent Order

(Complaint Exhibit A), Page 6 at Paragraphs 2(3) 5). In its previous

Motion

to Dismiss, claiming that this action is duplicative of the prior consent order, the

BNSF stated:

Under the Consent Decree,

BNSF, among other things, assumed full

responsibility for the cleanup, paid a civil penalty and agreed to cease and

desist from future

violations of the Act. (Respondent's Memorandum in

Support of its Motion to Dismiss ("Memo") at 5.)

Fourteen (14) years after the

release, near the midway point of the second

decade after the

initial incident and despite its prior position, in its Answer herein the

BNSF denies

liability and pleads six claimed affirmative defenses: the statute of

limitation, the alleged failure of Indian Creek to mitigate its damages, waiver of its rights,

estoppel, laches and the alleged failure of Indian Creek to adequately identify its

damages. The

alleged affirmative defenses range from one to three sentences each

and

fail to specify the count or counts to which they are intended to apply. The BNSF

pled the following:

First Affirmative Defense.

Complainant knew or reasonably should have known

of the alleged contamination on its property more than five years prior to filing the

complaint. Accordingly, complainant's claims must be dismissed pursuant to the

applicable statute of limitations. 735 ILCS 5/13-205.

Second Affirmative Defense. Complainant has failed to mitigate its damages.

Third Affirmative Defense. Complainant knew or reasonably should have

known

of the alleged contamination on its property many years ago. Complainant

chose not to bring this lawsuit for many years after having such knowledge.

such, Complainant has waived its rights to make claims against BNSF based on

the

alleged contamination.

Fourth Affirmative Defense. Complainant knew or reasonably should have

known

of the alleged contamination on its property many years ago. Complainant

chose not

to bring this lawsuit for many years after having such knowledge. As

such, Complainant is estopped from asserting claims against

BNSF based on the

alleged contamination.

Fifth Affirmative Defense. Complainant knew or reasonably should have known

of the alleged contamination on its property many years ago. Complainant chose

not

to bring this lawsuit for many years after having such knowledge. As such,

the doctrine of laches prohibits complainant from asserting claims against

BNSF

based on the alleged contamination.

Sixth Affirmative Defense. Complainant's purported damages have not been

identified with sufficient particularity, to the extent such damages even exist.

The

BNSF's alleged affirmative defenses are wholly conclusory and not pled with

sufficient particularity. Based on what

is pled it is not entirely possible to assess

whether

all of the alleged affirmative defenses are actually affirmative defenses at all!

Not even the elements of the alleged affirmative defenses have been pled.

ARGUMENT

Illinois is a fact pleading jurisdiction, Knox College v. Celotex Corp., 88 1I1.2d 407,

430

N.E.2d 976 (1981); Richco Plastic Co. v. IMS Co., 288 III. App. 3d 782, 681 N.E.2d

Dist. 1997). In order to set forth a good and sufficient claim or defense, a

pleading must

allege ultimate facts sufficient to satisfy each element of the cause of

action

or affirmative defense pled.

Id.

As to

the pleading

of affirmative defenses, Section 2-613(d) of the Code of Civil

Procedure specifically provides that the facts constituting any affirmative defense must

be plainly set forth in the defendants' answer. 735 ILCS 5/2-613(d); Richco Plastic Co.,

supra.

In determining the sufficiency of any claim or defense, conclusions of fact or law

that are not supported by allegations of specific fact will be ignored. Richo Plastic Co,

supra.,

Knox College,

supra;

Curtis v. Birch, 114

III.

App. 3d 127, 448 N.E.2d 591

(1983). The facts establishing an affirmative defense must be pled with the same degree bf

specificity

as required by a plaintiff to establish a cause of action. International Insurance Co. v.

Sargent and Lundy, 242 III. App. 3d 614, 630, 609 N.E.2d 842, 853 (1st Dis!. 1993), citing

Kermeen

v. City of Peoria, 65111. App. 3d 969, 973,382 N.E.2d 1374 (3rd Dis!. 1978).

The Board's procedural rules provide that "any facts constituting an affirmative

defense must be

plainly set forth before hearing in the answer or in a supplemental

answer, unless the affirmative defense could not have been known before hearing." 35

III.

Adm. Code 103.204(d). In a valid affirmative defense, the respondent alleges "new

facts or arguments that, if true, will defeat ... the government's claim even if all

allegations in the complaint are true." Grand Pier Center LLC v. River East LLC, PCB

No.

05-157, slip op. at 3 (January 5, 2006), citing People v. Community Landfill Co.,

PCB 97-193,

slip op. at 3 (Aug. 6, 1998). The Board has also defined an affirmative

defense as a "response to a

plaintiff's claim which attacks the plaintiff's legal right to

bring an action, as opposed to attacking the truth of

claim." Grand Pier Center LLC,

PCB No.

05-157, slip op. at 4, quoting Farmer's State Bank v. Phillips Petroleum Co.,

PCB 97-100, slip op. at 2 n. 1 (Jan. 23, 1997). Furthermore, if the pleading does not

admit the opposing party's claim, but instead attacks the sufficiency

of that claim, it is

not an affirmative defense. Grand Pier Center LLC, PCB No. 05-157, slip op. at citing

Worner Agency

v. Doyle, 121 III. App. 3d 219, 221,459 N.E.2d 663, 635 (4th Dis\,

1984). Accordingly, the alleged failure to adequately specify damages is not an

affirmative defense at all and should be stricken for this reason alone.

Here the BNSF

has

completely failed to plead other than sheer conclusions. Given the complete lack of

proper pleadings, it is difficult to determine whether some of the alleged affirmative

defenses are defenses at

all. The affirmative defenses must be stricken.

WHEREFORE,

Complainant, Indian Creek, respectfully requests that the

Pollution Control Board enter an order striking Respondent's affirmative defenses and

grant

Indian Creek such further and other relief as this Board deems just and proper.

Glenn C. Sechen

James

Griffin

Hope

Whitfield

Schain,

Bumey, Ross, & Citron, Ltd.

222

N. LaSalle Street

Suite

1910

Chicago, Illinois 60601

(312) 332-0200

(312) 332-4514 telefax

gsechen@schainlaw.com

Respectfully submitted,

INDIAN CREEK

tJkm

One of Its Attorneys

FIPCB Enforcement ActionlPleadings. FiledlM Strike Affirmative Defenses FNL.doc

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