1. RECEIVED
.,
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
£NOlAN CREEK DEVELOPMENT COMPANY, )
JUL 092007
an Illinois partnership, individually as
)
beneficiary under trust 3291
of the Chicago
)
STATE OF ILLINOIS
Pollution
Control Board
Title and Trust Company dated December 15, 1981 )
and the Chicago Title and Trust Company,
)
as trustee under trust 3291, dated
)
December
15, 1981,
)
PCB- 07-44
Complainant,
vs.
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, a Delaware Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
Citizen's Enforcement
§21(e), §12(a), §12(d)
NOTICE OF FILING
TO:
Glenn C. Sechen
Schain, Burney, Ross Citron, Ltd.
222
N. LaSalle Street, Suite 1900
Chicago, Illinois 6060 I
Bradley P. Halloran
Hearing
Officer
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 6060
I
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board
Respondent's Response Brief in Opposition to
Complainant's Motion to Strike, a copy of which is hereby served upon you.
DATE: July
9, 2007
Weston W. Marsh
Robert
M. Baratta, J
r.
FREEBORN
&
PETERS LLP
3 II South Wacker Drive
Suite 3000
Chicago, Illinois 60606
(312) 360-6000 - telephone
(312)
360-6597 - facsimile
PRINTED ON RECYCLED PAPER
1256901.3
BNS~:MPANY
By:
J..I.
~
J)
,
One of Its Attorneys
CERTIFICATE OF SERVICE
I, the undersigned, certi fy that I have served Respondent's Response Brief
in
Opposition to Complainant's Motion to Strike by depositing the same in the U.S. Mail box at
311 South Wacker Drive, Chicago, Illinois before 5:00 p.m. on July 9,2007, postage prepaid and
addressed to:
Glenn
C. Sec hen
Schain, Burney, Ross Citron, Ltd.
222 N. LaSalle Street, Suite
1900
Chicago, Illinois 6060 I
PRINTED ON RECYCLED PAPER
1256901 v3
Bradley P. Halloran
Hearing
Officer
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 6060 I
EJ::u
Robert M. Baratta,
~1fSh·
Jf.
RE:ceiVED
CLERK'S OFFICE
JUl
092007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDSTATE OF
ILl/NOIS
Pollution Control Board
INDIAN CREEK DEVELOPMENT COMPANY, )
an 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.
)
)
PCB- 07-44
Citizen's Enforcement
§21(e), §12(a), §12(d)
RESPONDENT'S RESPONSE BRIEF
IN OPPOSITION TO COMPLAINANT'S MOTION TO STRIKE
Under the Illinois Code of Civil Procedure, a pleader need only plead a concise, factual
statement
of its claim or defense. Evidence need not be pled. The rules of the Illinois Pollution
Control Board require no more. Following these simple rules, BNSF asserted six affirmative
defenses, which are based, in part,
on the extensive allegations made in the Complaint. As
discussed below, each
of the affirmative defenses is properly asserted and pled.
With respect
to affirmative defenses, Jhe Illinois Code of Civil Procedure states:
The facts constituting any affirmative defense, such as payment, release,
satisfaction,
... and defense which by other affirmative matter seeks to avoid the
legal effect
of or defeat the cause of action set forth in the complaint, counterclaim,
or third-party complaint, in whole or in part, and any ground or defense, whether
affirmative,
or not, which, if not expressly stated in the pleading, would be likely to
take the opposite party by surprise, must be plainly set forth in the answer or reply.
735 ILCS 5/2-6l3(d).
1366006v II()S21S-O
127
With respect to pleading generally, the lIIinois Code of Civil Procedure states that "[alII
pleadings shall contain a plain and concise statement of the pleader's cause of action,
counterclaim, defense,
or reply." (emphasis added) 735 ILCS 512-603(a).
While Complainant correctly states that lIIinois procedure requires fact pleading, as
opposed to notice pleading, only ultimate facts need by pled, not evidence.
Bd. of Ed. of
Kankakee School Dis!. No. III
v.
Kankakee Federation of Teachers Local No.
886, 46 I1l.2d
439,446-47,264 N.E.2d 18,22-23 (1970);
Ingram
v.
Little
Co.
of Mary Hosp.,
108 III. App. 3d
456, 459, 438 N.E.2d 1194, 1196
(I
st Dist. 1982). Moreover, "despite the requirement for fact
pleading, courts are to construe pleadings liberally
to do substantial justice between the parties."
Lempa v. Finkel,
278 III. App. 3d 417, 424, 663 N.E.2d 158, 163-64 (2
nd
Dist. 1996). No
pleading is bad
in substance that reasonably informs the opposite party of the nature of the claim.
Fisher
v. Holt,
52
III.
App. 3d 164, 166,367 N.E.2d 370, 372 (1st Dist. 1977).
Applying these well-worn concepts to BNSF's affirmative defenses, it is clear that the
defenses are properly pled. For instance, BNSF's first affirmative defense states that
Complainant knew or reasonably should have known
of the alleged contamination
on its property more than five years prior to filing the initial complaint.
Accordingly, complainant's claims must be dismissed pursuant
to the applicable
statute oflimitations. 735 ILCS
5113-205
This defense alleges the ultimate facts upon which BNSF will rely - that Plaintiffs knew or
should have known of the contamination more than 5 years before they brought the claim - and
the legal basis
of the defense - the applicable statute oflimitations found at 735 ILCS 5/13-205.
This defense also relies upon the allegations made 'by Complainant in its Compliant. For
instance, Complainant alleges that the release occurred in 1993 (Compl.
~3),
the "direction of
groundwater flow is from the BNSF Property to the Premises" (Compl.
~4),
BNSF and the State
entered into a Consent Decree in 1996 (Compl.
~6),
under the Consent Decree, BNSF was to
- 2-
1366006vl/05Z15-ll127
investigate off-site locations (Compl.
~7),
BNSF threatened the ongomg discharge of
contaminants onto the soil and groundwater of the Premises (Compl.
~33),
and BNSF abandoned
the diesel fuel in 1993 on the
BNSF Property (Compl.
~45).
Undoubtedly, the very facts raised
by Indian Creek and those asserted by BNSF in the affirmative defense establish the needed
factual background for this affirmative defense.
BNSF need
allege
no more than that.
Disregarding the Illinois Code
of
Civil
Procedure's requirement that the such defenses be
pled "concisely," complainant's
sole
argument with respect to this affirmative defense is that it is
only
a few sentences
long.
Complainant does not argue that it is not informed of the substance
of the defense or cannot reasonably determine the nature and basis for the defense. Therefore,
Complainant's argument must be rejected.
BNSF's third, fourth, and fifth affirmative defenses are based on the same operative
allegations that:
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, BNSF asserts that Complainant has waived its claim or is estopped or prohibited by the
doctrine of
laches
from bringing its claim. Again, Complainant does not argue that it is not
informed
of the substance of the defense or cannot reasonably determine the nature and basis for
the defense. BNSF is not required to plead more.
BNSF's second and sixth affirmative defenses relate to the damages asserted by
Complainant. BNSF asserts that Complainant has not mitigated its damages and/or has not
pleaded damages with sufficient particularity. Complainant argues that such defenses are
not
affirmative in nature. But, the Illinois Code of Civil Procedure requires the pleader to state any
affirmative matter that may take the other party by surprise. These two affirmative defenses are
-3 -
1366oo6v1l05215-0127
alleged so as not to run afoul of such requirement. To the extent that these two defenses are not
otherwise evident from the answer, BNSF is under an obligation
to assert them. BNSF has done
so.
BNSF's affirmative defenses follow the pleading requirements in the Illinois Code
of
Civil Procedure and the Board rules by reasonably informing Complainant of the allegations
against it. As such, the Motion to Strike should
be denied. If, however, the Board is inclined to
grant the Motion to Strike, BNSF requests leave to amend the affirmative defenses to include
additional facts.
Weston
W. Marsh
Ro bert M. Baratta, Jr.
FREEBORN
&
PETERS LLP
311 South Wacker Drive
Suite
3000
Chicago, Illinois 60606
(312) 360-6000 - telephone
(312) 360-6597 - facsimile
1366006v1/05215-0127
Respectfully submitted,
-4-

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