BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS
)
ex rel.
LISA MADIGAN, Attorney General
)
of the State of Illinois
)
) PCB 2008-007
Complainant,
)
)
vs.
)
VIA ELECTRONIC FILING
)
UNION PACIFIC RAILROAD COMPANY,
)
a Delaware corporation,
)
)
Respondent.
)
NOTICE OF FILING
John Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Zemeheret Bereket-Ab
Assistant Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago, IL 60602
Bradley P. Halloran
Hearing Officer
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
W. Lee Hammond
Union Pacific Railroad Company
1400 Douglas Street
Stop 1080
Omaha, NE 68179
Please take notice that today, April 3, 2009, I have filed with the Office of the Clerk of
the Illinois Pollution Control Board by electronic filing a Motion to Sever and Memorandum of
Law In Support of Motion to Sever on behalf of Union Pacific Railroad Company, along with
Notice of Filing and Certificate of Service, a copy of which is attached hereto and served upon
you.
Respectfully submitted,
SONNENSCHEIN NATH & ROSENTHAL LLP
Thomas A. Andreoli
By: /s/ Thomas A. Andreoli
Austin Kaplan
Attorneys for Respondent
SONNENSCHEIN NATH & ROSENTHAL LLP
Union Pacific Railroad Company
233 South Wacker Drive
Chicago, Illinois 60606
312.876.8000
tandreoli@sonnenschein.com
akaplan@sonnenschein.com
Electronic Filing - Received, Clerk's Office, April 3, 2009
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS
)
ex rel.
LISA MADIGAN, Attorney General
)
of the State of Illinois
)
) PCB 2008-007
Complainant,
)
)
vs.
)
VIA ELECTRONIC FILING
)
UNION PACIFIC RAILROAD COMPANY,
)
a Delaware corporation,
)
)
Respondent.
)
UNION PACIFIC RAILROAD COMPANY’S
MOTION TO SEVER
Union Pacific Railroad Company (“Union Pacific”) hereby respectfully moves the
Illinois Pollution Control Board (the “Board”) to sever this action, pursuant to 35 Ill. Adm. Code
§§ 101.406 and 101.408 and 735 ILCS 5/2-1006. The Board should sever this action and direct
the State to re-file separate actions, because the Complaint improperly consolidates claims
arising from two separate and unrelated events in November 2005 and February 2006 which,
based on the face of the Complaint, took place at different times and on different properties and
involve different theories of liability, witnesses and potential evidence.
Severance is appropriate where it avoids material prejudice. 35 Ill. Adm. Code
§ 101.408. Consolidation of claims that causes material prejudice to any party is improper. 35
Ill. Adm. Code § 101.406. The courts have recognized that requiring a party to try two unrelated
sets of facts in the same action is reversible error.
See Mount v. Dusing
, 414 Ill. 361, 367-68 (Ill.
1953) (reversed and remanded for severance);
Rogala v. Silva
, 16 Ill. App. 3d 63, 64-65, 68 (1st
Dist. 1973) (affirming severance of action).
- 2 -
Union Pacific believes that, once the evidence has been heard, neither the November
2005 or the February 2006 event will support a finding of liability under the Illinois
Environmental Protection Act, 415 ILCS 5/1
et seq
. That question is not before the Board on
this Motion. This Motion seeks to avoid the material prejudice created by the Complaint’s
improper consolidation claims arising out of these alleged events. Requiring Union Pacific to
defend these claims in a single action would be in error, because a finding of liability against
Union Pacific as to either one of these separate and unrelated events would create an
impermissible negative inference as to Union Pacific’s liability related to the other. An objective
damages determination as to either alleged event also would be impossible.
Finally, severance will avoid confusion of the record, based upon the different theories of
liability, witnesses and potential evidence involved, and serve to narrow disputed issues and
facilitate settlement and assist in the convenient, expeditious and complete determination of the
issues.
WHEREFORE, Union Pacific Railroad Company respectfully requests that the Illinois
Pollution Control Board enter an order severing this action, directing the State to re-file separate
actions, and providing such other relief as the Board deems appropriate.
Dated: April 3, 2009
Respectfully submitted,
S
ONNENSCHEIN NATH & ROSENTHAL LLP
Thomas A. Andreoli
By: /s/ Thomas A. Andreoli
Austin Kaplan
Attorneys for Respondent
SONNENSCHEIN NATH & ROSENTHAL LLP
Union Pacific Railroad Company
233 South Wacker Drive
Chicago, Illinois 60606
312.876.8000
tandreoli@sonnenschein.com
akaplan@sonnenschein.com
Electronic Filing - Received, Clerk's Office, April 3, 2009
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS
)
ex rel.
LISA MADIGAN, Attorney General
)
of the State of Illinois
)
) PCB 2008-007
Complainant,
)
)
vs.
)
VIA ELECTRONIC FILING
)
UNION PACIFIC RAILROAD COMPANY,
)
a Delaware corporation,
)
)
Respondent.
)
MEMORANDUM OF LAW
IN SUPPORT OF UNION PACIFIC RAILROAD COMPANY’S
MOTION TO SEVER
Introduction
Union Pacific Railroad Company (“Union Pacific”) has moved the Illinois Pollution
Control Board (the “Board”) to sever this action, pursuant to 35 Ill. Adm. Code §§ 101.406 and
101.408 and 735 ILCS 5/2-1006. The Board should sever this action and direct the State to re-
file separate actions, because the Complaint improperly consolidates claims arising from two
separate and unrelated events in November 2005 and February 2006. Based on the face of the
Complaint, these events took place at different times and on different properties and involve
different theories of liability, witnesses and potential evidence. Requiring Union Pacific to
defend these claims in a single action would be in error, because a finding of liability against
Union Pacific as to either one of the alleged separate and unrelated events would create an
impermissible negative inference as to Union Pacific’s liability related to the other. An objective
damages determination as to either event also would be impossible. Finally, severance will
Electronic Filing - Received, Clerk's Office, April 3, 2009
- 2 -
avoid confusion of the record, serve to narrow disputed issues and facilitate settlement and assist
in the convenient, expeditious and complete determination of the issues.
The Background
A.
Global II And Proviso Yard
1.
Union Pacific owns and operates two separate properties that are subject to the
Complaint: (1) the Global II intermodal property, 301 W. Lake Street, Northlake, Illinois 60164
(“Global II”), and (2) the Proviso Yard, 5050 W. Lake Street, Melrose Park, Illinois 60610.
2.
As its name suggests, Global II serves as a staging ground to exchange shipping
products between rail and truck. Third-parties (
e.g
., shippers and their contractors) may access
Global II twenty four hours a day, seven days a week.
3.
The Proviso Yard is a separate property with a separate purpose. Proviso Yard is
a classification yard at which Union Pacific services locomotives and divides railroad cars onto
different tracks.
B.
The November 2005 Event
4.
The Illinois Environmental Protection Agency (the “IEPA”) allegedly inspected
the Proviso Yard on November 23, 2005 and observed a “rainbow and silver colored sheen on
the water extending from a storm culvert at the Facility’s Locomotive Fueling Pad, continuing on
through a drainage ditch an ultimately … being discharged into Mud Creek” (Compl. ¶ 7;
see
Compl. ¶ 8) (the “November 2005 Event”).
5.
The Complaint does not contain any allegations of an operational release of
contaminants at the Proviso Yard in November 2005. There was none. Rather, the Complaint
alleges that IEPA was “notified … that there had been a recent fuel oil release” at the Proviso
Yard. (Compl. ¶ 6). The Complaint does not identify the cause or source of the alleged
November 23, 2005 release.
- 3 -
6.
The Complaint does not contain any allegations pertaining to any acts or
omissions by Union Pacific at the separate Global II property in connection with the November
2005 Event.
C.
The February 2006 Event
7.
On February 19, 2006, a “diesel fuel release” allegedly occurred at the Global II
property (Compl. ¶ 9) (“February 2006 Event”). The Complaint alleges that one of Union
Pacific’s “contractors had caused the fuel release when a fuel line on one of the … contractor’s
trucks ruptured, discharging diesel fuel into a storm sewer inlet.”
1
(Compl. ¶ 12). The
Complaint alleges that the contractor’s release subsequently was discharged into Mud Creek.
(Compl. ¶ 13).
8.
The Complaint does not contain any allegations pertaining to any act or omissions
by Union Pacific at the separate Proviso Yard in connection with the February 2006 Event.
D.
The Complaint
9.
On July 17, 2006, the State filed its Complaint (attached as Exhibit A to this
Motion). The Complaint consolidates the State’s claims arising from the November 2005
(Compl. ¶¶ 6-8) and the February 2006 (Compl. ¶¶ 9-13) events into four combined counts. In
the first three counts, the Complaint alleges Union Pacific caused water pollution in violation of
415 ILCS 5/12(a), 12(d) and 12(f). In the fourth count, the State alleges violations of 35 Ill.
Adm. Code §§ 302.203 and 304.105 and 415 ILCS 5/12(a).
1
While the veracity of the Complaint’s allegations are not at issue at this juncture, Union Pacific
has advised the State that the facts alleged in Paragraph 12 of the Complaint are incorrect. Union
Pacific did not inform representatives of the IEPA and the Metropolitan Water Reclamation
District that “one of [Union Pacific’s] contractors had caused the release.” (
cf
. Compl. ¶ 12).
The person involved was not a Union Pacific contractor.
Electronic Filing - Received, Clerk's Office, April 3, 2009
- 4 -
Legal Standard
The Board has the authority under the Administrative Code to sever claims “[u]pon
motion of any party or on the Board’s own motion, in the interest of convenient, expeditious and
complete determination of claims, and where no material prejudice will be caused.” 35 Ill. Adm.
Code § 101.408;
see
735 ILCS 5/2-1006 (authorizing severance of claims “as an aid to
convenience, whenever it can be done without prejudice to a substantial right”). Conversely, the
Board only will consolidate claims if “consolidation would
not
cause material prejudice to any
party.” 35 Ill. Adm. Code § 101.406 (emphasis provided). The courts have recognized that the
prejudice inherent in requiring a party to try two unrelated sets of facts in the same consolidated
action is reversible error.
See Mount v. Dusing
, 414 Ill. 361, 367-68 (1953) (reversed and
remanded for severance);
Rogala v. Silva
, 16 Ill. App. 3d 63, 64-65, 68 (1st Dist. 1973)
(affirming severance of action).
Argument
A.
The Board Should Sever The Action To Avoid Material Prejudice
The Complaint improperly consolidates claims arising from two separate and unrelated
events which, based on the face of the Complaint, took place at different times and on different
properties and involve different theories of liability, witnesses and potential evidence. Requiring
Union Pacific to defend these claims in a single action would be in error, because a finding of
liability against Union Pacific as to either one of the events—whether the November 2005 or
February 2006 event—would create an impermissible negative inference as to Union Pacific’s
liability related to the other. Consolidation of these claims, which are based upon different
theories of liability, also would render impossible an objective damages determination.
- 5 -
1.
The November 2005 And February 2006 Events Happened
At Different Times And In Different Places
The November 2005 and February 2006 events are unrelated and cannot be tried together
without material prejudice to Union Pacific. The alleged events occurred at different times,
indeed, in different years. (Compl. ¶¶ 6, 9).
See Mount,
414 Ill. at 367-68 (reversing for failure
to severing action where the allegations were separated by one year’s time);
Rogala
, 16 Ill. App.
3d at 67-68 (affirming severance of claims separated by eight months). The alleged events also
took place on different properties, which serve entirely different functions. The State conceded
as much in its approach to investigation of the November 2005 and February 2006 events, which
were conducted under separate IEPA violation notices and classifications (W-2005-00535 and
M-2006-02009).
Not only are the underlying facts completely different, the State’s theory of liability as to
each instance is distinct. The State does not allege (nor could it allege) facts supporting the
existence of an operational release by Union Pacific in November 2005. The State’s theory of
liability as to the November 2005 Event effectively is “strict liability,”
i.e.
, the existence of the
alleged release alone suffices to impose liability.
2
In contrast, the Complaint alleges the
existence of an actual operational release, albeit by a third-party on Union Pacific property, in
connection with the February 2006 Event. Union Pacific should not be required to defend these
distinct theories of liability in a single action. A finding of liability against Union Pacific as to
2
Union Pacific denies the State can support this theory of liability. The Act is not a strict
liability statute.
People v. A.J. Davinroy Contractors
, 249 Ill. App. 3d 788, 793, 618 N.E.2d
1282, 1286 (5th Dist. 1993);
Perkinson v. Ill. Pollution Control Bd
., 187 Ill. App. 3d 689, 693,
543 N.E.2d 901, 903 (3d Dist. 1989);
Phillips Petroleum Co. v. Ill. Envtl. Prot. Agency
, 72 Ill.
App. 3d 217, 220, 390 N.E.2d 620, 623 (2d Dist. 1979). Liability under the Act may not be
imposed, regardless of fault.
Id
.;
see
,
e.g.
,
PMC, Inc. v. Sherwin-Williams Co
., 1993 WL
259442, at *2 (N.D. Ill. July 7, 1993) (noting that the Act is “a fault-based statute”).
- 6 -
either one of these separate and unrelated events would create an unavoidable and impermissible
negative inference—“If Union Pacific isn’t liable for this, then it should be liable for that.”
Severance is the appropriate remedy under these circumstances.
2.
Consolidation Prejudices Objective Damages
The Board should not try the Complaint’s separate and unrelated claims in the same
proceeding, because consolidation will render an objective damages determination as to either
alleged event impossible. The Complaint does not distinguish or otherwise identify the damages
being sought in connection with the November 2005 and February 2006 events. Instead, the
Complaint asks for consolidated damages. (Compl. at 6, 7, 9, 11-12). On information and
belief, the State consolidated the relief being sought because it did not and does not have
individualized damages assessments for each claim.
B.
Severance Will Save Time And Resources
Finally, severance will avoid confusion of the record and serve the convenient,
expeditious and complete determination of the issues. The State should have filed these claims
separately in the first instance. Severance reasonably will have the benefit of narrowing the
disputed issues before the Board. Severance also will give the parties both the incentive and the
opportunity to settle either of the claims individually.
Electronic Filing - Received, Clerk's Office, April 3, 2009
- 7 -
Conclusion
WHEREFORE, Union Pacific Railroad Company respectfully requests that the Illinois
Pollution Control Board enter an order severing the claims and directing the State to re-file
separate actions, and providing such other relief as the Board deems appropriate.
Dated: April 3, 2009
Respectfully submitted,
SONNENSCHEIN NATH & ROSENTHAL LLP
By: /s/ Thomas A. Andreoli
Attorneys for Respondent
Union Pacific Railroad Company
Thomas A. Andreoli
Austin Kaplan
Sonnenschein Nath & Rosenthal LLP
233 South Wacker Drive
Chicago, Illinois 60606
312.876.8000
tandreoli@sonnenschein.com
akaplan@sonnenschein.com
Exhibit A
Electronic Filing - Received, Clerk's Office, April 3, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
ex
rel.
LISA MADIGAN, Attorney
1
General of the State of Illinois,
)
1
PCB
Complainant,
)
)
(Enforcement
-
Water
)
VS.
1
)
UNION PACIFIC RAILROAD
)
COMPANY, a Delaware Corporation,
)
VIA
ELECTRONIC FILING
1
Respondent.
1
NOTICE OF FILING
TO:
Mr. W. Lee Hammond
Clerk
Environmental Manager
Illinois Pollution Control Board
Union Pacific Railroad Company
James R. Thompson Center
1400 Douglas Street, Stop 1080
100 W. Randolph Street, Suite 1 1
-500
Omaha
,
Nebraska 68 179
Chicago, Illinois 60601
PLEASE
TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board an original and nine copies of the Complaint, Notice of Filing
and a Certificate of Service, a copy of which is attached herewith and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
BY:
$anb&
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago,
IL 60602
(312) 814
-3816
DATE: July 16,2007
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Exhibit A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
ex rel. LISA MADIGAN, Attorney
General of the State of Illinois,
)
Complainant,
)
No.
v.
)
UNION PACIFIC RAILROAD
COMPANY,
a Delaware Corporation,
1
Respondent.
)
COMPLAINT
Complainant, PEOPLE OF THE STATE-OF ILLINOIS, ex rel. LISA MADIGAN,
Attorney General of the State of Illinois, on her own motion and at the request of the Illinois
Environmental Protection Agency, complains of Respondent, UNION PACIFIC RAILROAD
COMPANY, a Delaware Corporation, as follows:
COUNT I
CAUSING, THREATENING OR ALLOWING WATER POLLUTION
1.
This count is brought on behalf of the PEOPLE OF THE STATE OF ILLINOIS,
ex rel. LISA
MADIGAN, Attorney General of the State of Illinois, on her own motion and at the
request of the Illinois Environmental Protection Agency (
"Illinois EPA"), pursuant to Section 3 1
of the Illinois Environmental Protection Act ("Act"), 41 5 ILCS 513 1 (2006).
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 41
5 ILCS 514 (2006), and charged, inter alia, with the duty of
enforcing the Act. Additionally, pursuant to Section
402(b) of the federal Clean Water Act
Electronic Filing - Received, Clerk's Office, April 3, 2009
("CWA"), 33 U.S. C.
5
1342(b), the Illinois EPA administers and enforces the CWA's National
Pollutant Discharge Elimination System (
"NPDES") permit program within the State of Illinois.
3.
At all times relevant to this Complaint, UNION PACIFIC RAILROAD
COMPANY (
"Respondent"), has been a Delaware corporation duly authorized to do business in
Illinois.
4.
At all times relevant to this Complaint, Respondent has operated a rail yard and
intermodal facility, located at
301 West Lake Street, City of Northlake, County of Cook, Illinois
(
"Facility").
5.
Stormwater and accumulated groundwater from the Facility are treated by passing
through an
oillwater separator ("Separator"), prior to being discharged into Mud Creek, which is
a tributary of Addison Creek. The Separator consists of several weirs over which water flowing
through the Separator passes, prior to being discharged. Respondent's discharge of the treated
stormwater and accumulated groundwater is authorized under the terms of its Illinois EPA
-issued
NPDES Permit No.
IL0002127 ("NPDES Permit").
6.
On November 23,2005, an employee of the Metropolitan Water Reclamation
District of Greater Chicago (
"MWRDC") notified Illinois EPA that there had been a recent fuel
oil release at the Facility.
7.
On November 23,2005 (
"November 23rd Inspection") the Illinois EPA inspected
the Facility and observed a rainbow and silver colored sheen on the water extending from a storm
culvert at the Facility's Locomotive Fueling Pad, continuing on through a drainage ditch and
ultimately flowing into the Separator and then proceeding over the final
weir in the Separator,
before being discharged into Mud Creek.
Electronic Filing - Received, Clerk's Office, April 3, 2009
8.
During the November 23rd Inspection, the Illinois EPA observed the rainbow and
silver colored sheen along the length of the
oillwater separator structure, continuing past the final
weir in the structure, and, ultimately, in Mud Creek.
9.
On February 19, 2006, or on a date better known to Respondent, a diesel fuel
release occurred at the Facility.
10.
On February 21, 2006, representatives of the Illinois EPA and the MWRDC
conducted an inspection of the Facility and confirmed that a diesel fuel release had indeed
occurred.
1 1.
,
On February 22,2006 ("February 22"d Inspection"), representatives of the Illinois
EPA and the MWRDC returned to the Facility and met with a representative for the Respondent.
12.
During the February
22nd Inspection, Respondent's representative informed the
Illinois EPA and MWRDC representatives that one of Respondent's contractors had caused the
fuel release when a fuel line on one of the Respondent's contractor's trucks ruptured, discharging
diesel fuel into a storm sewer inlet at the Facility.
13.
During the February
22nd Inspection, the Illinois EPA and the MWRDC
representatives determined that at least some of the diesel fuel which had been released as a
result of the rupture to the fuel line had flowed through the Facility's Separator and had
subsequently been discharged into Mud Creek.
14.
Section
12(a) of the Act, 415 ILCS 5/12(a)(2006), provides as follows:
No person shall:
(a)
Cause or threaten or allow the discharge of any contaminants into
the environment of any State so as to cause or tend to cause water
pollution in Illinois, either alone or in combination with matter
Exhibit A
from other sources, or so as to violate regulations or standards
adopted by the Pollution Control Board under this Act.
15.
Section 3.3 15 of the Act, 41 5 ILCS 513.3 15
(2006), provides the following
definition:
"PERSON" is any individual, partnership, co-partnership, firm, company,
limited liability company, corporation, association, joint stock company,
trust, estate, political subdivision, state agency, or any other legal entity, or
their legal representative, agent or assigns.
16.
Respondent, a Delaware corporation, is a
"person," as that term is defined in
Section 3.3 15 of the Act.
17.
Section 3.165 of the Act, 41 5 ILCS 513.165
(2006), provides the following
definition:
"CONTAMINANT" is any solid, liquid, or gaseous matter, any odor, or
any form of energy, from whatever source.
18.
The rainbow and silver colored fuel oil sheen that was observed on the water
discharging into Mud Creek is a
"contaminant," as that term is defined by Section 3.165 of the
Act.
19.
Section 3.545 of the Act, 415 ILCS 513.545
(2006), provides the following
definition:
"WATER POLLUTION" is such alteration of the physical, thermal,
chemical, biological or radioactive properties of any waters of the State, or
such discharge of any contaminant into any waters of the State, as will or
likely to create a nuisance or render such waters harmful or detrimental or
injurious to public health, safety, or welfare, or domestic, commercial,
industrial, agricultural, recreational, or other legitimate uses, or to
livestock, wild animals, birds, fish, or other aquatic life.
Electronic Filing - Received, Clerk's Office, April 3, 2009
20.
The rainbow and silver colored fuel oil release observed in Mud Creek during the
November 23, 2005 Inspection constitutes
"water pollution," as that term is defined by Section
3.545 of the Act, 415 ILCS 513.545 (2006).
2 1.
The diesel fuel released on or about February 19,2006 constitutes
"water
pollution,
" as that term is defined by Section 3.545 of the Act, 415 ILCS 513.545 (2006).
22.
Section 3.550 of the Act, 415 ILCS 513.550
(2006), provides the following
definition:
"WATERS" means all accumulations of water, surface and underground,
natural, and artificial, public and private, or parts thereof, which are
wholly or partially within, flow through, or border upon the State.
23.
The water in the
separator at the Facility, as well as in Mud Creek, constitute
"waters," as that term is defined in Section 3.550 of the Act.
24.
By causing, threatening or allowing the rainbow and silver colored fuel oil sheen
to discharge from the Separator into Mud Creek, as well as by allowing the diesel fuel release at
the Facility into Mud Creek, Respondent caused, threatened or allowed the discharge of a
contaminant into the environment.
25.
By causing, threatening or allowing the discharge of the rainbow and silver
colored fuel oil sheen and the diesel fuel, both of which are
"contaminants," to discharge into
.Mud Creek, a water of the State, Respondent caused, threatened or allowed water pollution in
Illinois, in violation of Section
12(a) of the Act, 415 ILCS 5/12(a)(2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that .the Board enter an order in favor of Complainant and against Respondent with
respect to this Count I:
5
Exhibit A
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section
12(a) of the Act, 415 ILCS
511 2(a)(2006);
3.
Ordering Respondent to cease and desist from any further violations of Section
12(a) of the Act, 415 ILCS 5/12(a)(2006);
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
Respondent for each violation of Section
12(a) of the Act, 415 ILCS 5/12(a) (2006), and an
additional civil penalty of Ten Thousand Dollars ($10,000.00) per day for each day during which
Respondent continues to be in violation of Section
12(a) of the Act;
5.
Ordering Respondent to pay all costs including attorney, expert witness and
consultant fees expended by the State in its pursuit of this action; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT I1
CREATING A WATER POLLUTION HAZARD
1
-
13. Complainant realleges and incorporates by reference herein paragraphs 1 through
'
13 of Count I as paragraphs 1 through 13 of this Count 11.
14.
Section
12(d) of the Act, 41 5 ILCS 5/12(d) (2006), provides as follows:
No person shall:
(d)
Deposit any contaminants upon the land in such place and manner
so as to create a water pollution hazard.
Exhibit A
15.
On at least two occasions, Respondent deposited petroleum products, which are
contaminants, onto the land in such place and manner so as to create a water pollution hazard, in
violation of Section
12(d) of the Act, 415 ILCS 5/12(d) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board enter an order in favor of Complainant and against Respondent with respect to
this Count
11:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section
12(d) of the Act, 415 ILCS 5/12(d)
3.
Ordering Respondent to cease and desist from any further violations of Section
12(d) of the Act, 415 ILCS 5/12(d) (2006);
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
Respondent for each violation of Section
12(d) of the
~ct,
415 ILCS 5/12(d) (2006), and an
additional penalty of Ten Thousand Dollars ($1 0,000.00)
for.each day during which Respondent
continues to be in violation of Section
12(d) of the Act;
5.
Ordering Respondent to pay all costs including attorney, expert witnesses and
consultant fees expended by the State in its pursuit of this action; and
6
Granting such other relief as the Board deems appropriate and just.
Electronic Filing - Received, Clerk's Office, April 3, 2009
COUNT I11
FAILURE TO COMPLY WITH THE TERMS
AND CONDITIONS OF THE NPDES PERMIT
1
-
13. Complainant realleges and incorporates by reference herein paragraphs 1 through
13 of Count I as paragraphs 1 through 13 of this Count III.
14.
Section
12(f) of the Act, 415 ILCS 5/12(f) (2006), provides as follows:
No person shall:
(f)
Cause, threaten, or allow the discharge of any contaminant into the
waters of the State, as defined herein, including but not limited to,
any waters to any sewage works, or into any well or from any point
source within the State, without an NPDES permit for point source
discharges issued by the Agency under Section
39(b) of this Act, or
in violation of any NPDES permit filing requirement established
under Section
39(b), or in violation of any regulations adopted by
the Board or of any order adopted by the Board with respect to the
NPYDES program.
15.
Section
309.102(a) of the Illinois Pollution Control-Board Water Pollution
regulations (
"Board Water Pollution Regulations"), 35 111. Adm. Code 309.102(a), provides as
follows:
a.
Except as in compliance with the provisions of the Act, Board
regulations and the CWA, and the provisions and conditions of the
NPDES permit issued to the discharger, the discharge of any
contaminant or pollutant by any person into the waters of the State
from a point source or into a well shall be unlawful.
16.
.
The discharge of petroleum products from the Separator into Mud Creek is a
violation of Respondent's NPDES Permit and is therefore a violation of Section
309.102(a) of
the Board Water Pollution Regulations, 35
Ill. Adm. Code 309.102(a).
Exhibit A
17.
By violating Section
309.102(a) of the Board Water Pollution regulations, 35 Ill.
Adm. Code 309.102(a), Respondent thereby, also violated Section 12(f) of the Act, 41 5 ILCS
5/12(f) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests the Board to enter an order in favor of Complainant and against Respondent with respect
to this Count
III:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section
12(f) of the Act, 415 ILCS 5/12(f)
(2006), and Section 309.102(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a);
3.
Ordering Respondent to cease and desist from further violations of Section
12(f)
of the Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a) of the Board Water Pollution
Regulations, 35
Ill. Adm. Code 309.102(a);
4.
Assessing a civil penalty of Ten Thousand Dollars ($10,000.00) per day against
Respondent for each day of violation of Section
12(f) of the Act, 415 lLCS 5/12/(f) (2006), and
Section
309.102(a) of the Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a);
5.
Ordering Respondent to pay all costs including attorney, expert witness and
consultant fees expended by the State in its pursuit of this action; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT IV
VIOLATION OF WATER QUALITY AND EFFLUENT STANDARDS
1-14. Complainant realleges and incorporates by reference herein paragraphs 1 through
14 of Count
I as paragraphs 1 through 14 of this Count IV.
15.
'
Section 302.203 of the Board Water Pollution Regulations, 35 Ill. Adm. Code
302.203, provides as follows:
Waters of the State shall be free from sludge or bottom deposits, floating
debris, visible oil, odor, plant or algal growth, color or turbidity of other
than natural origin
...
(
16.
Section 304.105 of the Board Water Pollution Regulations, 35
Ill. Adm. Code
304.105, provides as follows:
In addition to the other requirements of this Part, no effluent shall, alone or
in combination with other sources, cause a violation of any applicable
water quality standard
. . .
17.
On November 23, 2005, and on February 19,2006, or on dates better known to
the Respondent, Respondent caused or allowed petroleum products to leave the Separator at the
Facility and to enter Mud Creek.
18.
By allowing the petroleum products to enter Mud Creek, Respondent thereby
violated the water quality standard found in Sections 302.203 of the Board Water Pollution
Regulations, 35
Ill. Adm. Code 302.203.
19.
Through its violation of Section 302.203 of the Board Water Pollution
Regulations, 35
Ill. Adm. Code 302.203, Respondent thereby violated Section 304.105 of the
Board Water Pollution Regulations, 35
Ill. Adm. Code 304.105.
Electronic Filing - Received, Clerk's Office, April 3, 2009
20.
By violating Sections 302.203 and 304.105 of the Board Water Pollution
Regulations, 35
Ill. Adm. Code 302.203 and 304.105, Respondent thereby, also violated Section
12(a) of the Act, 415 ILCS 5/12(a) (2006).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order in favor of Complainant and against Respondent, on this
Count
IVY
as follows:
1.
Authorizing a hearing in this matter at which time Respondent will be required to
answer the allegations herein;
2.
Finding that Respondent has violated Section
12(a) of the Act, 415 ILCS 5/12(a)
(2006), and Sections 302. 203 and 304.105 of the Board Water Pollution Regulations, 35 Ill.
Adm. Code 302.203 and 304.105;
3.
Ordering Respondent to cease and desist from any further violations of Section
12(a) of the Act, 415 ILCS 5/12/(a) (2006), and Sections 302.203 and 304.105 of the ~oard'
Water Pollution Regulations, 35 Ill. Adm. Code 302.203 and 304.105;
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) for each
violation of Section
12(a) of the Act, 415 ILCS 5/12/(a) (2006), and Sections 302. 203 and
304.105 of the Board Water Pollution Regulations, 35
Ill. Adm. Code 302.203 and 304.105, and
an additional civil penalty of Ten Thousand Dollars ($1 0,000.00) for each violation of Section
12(a) of the Act and Sections 302.203 or 304.105 of the Board Water Pollution Regulations, 35
Ill. Adm. Code 302.203 and 304.105;
5.
Ordering Respondent to pay all costs including attorney, expert witness and
consultant fees expended by the State in its pursuit of this action; and
11
Electronic Filing - Received, Clerk's Office, April 3, 2009
Of Counsel:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814
-3816
(312) 814
-2347
-
fax
\\oagfile\Common\Environmental
EnforcemenlE BEREKET-AB\Union Pacific
-
Complaint
6-20-07.wpd
Granting such other relief as the Board deems appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN, Attorney
General of the State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement1
Asbestos Litigation Division
-
MAI~TE~AZE
2
Environmental Bure
Assistant Attorney General
Electronic Filing - Received, Clerk's Office, April 3, 2009
CERTIFICATE OF SERVICE
I, ZEMEHERET BEREKET
-AB, an Assistant Attorney General, do certify that I caused
to be served on this 1
6th day of July, 2007, .the foregoing Complaint, Notice of Filing, and a
Certificate of Service upon the person listed on said Notice by placing same in an envelope
bearing sufficient postage with the United States Postal Service located at 100 West Randolph
Street, Chicago, Illinois.
ZEMEHERET BEREKET
-AB
Electronic Filing - Received, Clerk's Office, April 3, 2009
CERTIFICATE OF SERVICE
I, Thomas A. Andreoli, an attorney, hereby certify that I caused a copy of the Motion to
Sever and Memorandum of Law In Support of Motion to Sever on behalf of Union Pacific
Railroad Company, along with Notice of Filing and Certificate of Service, to be served upon the
service list on April 3, 2009, by regular mail.
/s/ Thomas A. Andreoli
Thomas A. Andreoli
