BEFORE THE POLLUTION CONTROL BOARD
OF
THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Respondent.
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PCB 2008-007
NOTICE OF FILING
John Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street - Suite 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing
Officer
James R. Thompson Center
100 W. Randolph Street - Suite 11-500
Chicago, Illinois 60601
Thomas
A.
Andreoli
Austin Kaplan
Sonnenschein Nath
&
Rosenthal LLP
233 South Wacker Drive
Chicago, Illinois
60606
Please
take notice that today, April 22, 2009, I have filed with the Office ofthe Clerk of
the Illinois Pollution Control Board by electronic filing Complainant's Response in Opposition
to Respondent's Motion to Sever, along with Notice of Filing and Certificate of Service, a copy
of which is attached hereto and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois
BY:
,(tf~~~£.-Mt
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 W. Washington
St., Ste. 1800
Chicago, Illinois 60602
Tel: (312) 814-3816
Fax: (312) 814-2347
E-Mail: zbereket-ab@atg.state.i1.us
Electronic Filing - Received, Clerk's Office, April 22, 2009
BEFORE THE POLLUTION CONTROL BORD
OF THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois,
Complainant,
v.
UNION PACIFIC RAILROAD COMPANY
Respondent.
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PCB 2008-07
COMPLAINANT'S RESPONSE
IN OPPOSITION TO
RESPONDENT'S MOTION TO SEVER
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA
MADIGAN, Attorney General of the State of Illinois and in support of its Response in
Opposition to Respondent's motion to sever states as follows:
ARGUMENT
The State respectfully moves the Illinois Pollution Control Board ("The Board") to
dismiss Respondent's motion to sever brought pursuant to 35 Ill. Adm. Code §§
101.406 and
101.408. The Board should not sever this action because the Complaint properly consolidates
claims that involve the same responsible party, the same facility, the same regulatory program -
the
NPDES program, the same NPDES Permit # IL0002127, and the same theory ofliability.
Severance is only appropriate
"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. Further, claims may be properly consolidated "if consolidation is in the interest of
convenient, expeditious, and complete determination of claims, and if consolidation would not
cause material prejudice to any
party." 35 Ill. Adm. Code § 101.406.
Electronic Filing - Received, Clerk's Office, April 22, 2009
"The Board will not consolidate proceedings where the burdens of proof vary."
!d.
Here,
the law
"clearly indicates that an action involving materially different issues may be severed by
the court,"
Mount v. Dusing,
414 Ill. 361, 367-68 (Ill. 1953. In this case the claims at issue
arose
on Respondent's property and no material prejudice would be caused by the consolidation
of the claims. The convenience, expediency, and complete determination of claims would be best
served
by both issues being consolidated and would "enhance the convenient disposition of the
business
of the court."
Id.,
414 Ill. at 367.
The Pertinent
Facts
"Proviso Yard" and "Global 2" inter modal facility are located on the same parcel of
land, just in different locations on the parcel. The weir structure is located on the northern edge
of Respondent's property. A simple Google map search shows that they have different street
addresses based upon their proximity to specific 'streets bordering the entire facility, but they are
located on the same parcel
ofland.
"Union Pacific Railroad operates a railroad classification
yard and an intermodal facility located in Cook Coun(l' that encompasses approximately 500
acres ofland .... Stormwater runofffrom the railroad yardfacility ... pass through a weir structure
located on the northe1'1l edge of the Union Pacific Railroad's property. This weir structure
sen'es as the discharge
point for the lL NPDES permit #IL0002127".
(Lee Hammond, UPRR's
Manager of Environmental Field Operations response to VN dated June 6, 2006. See letter
attached as Complainant's Exhibit A).
More significantly to the law suit, the violations were noted at and below
UPRR's onsite
oil/water separator. The issue and violations in both incidents involve inadequate
operation/maintenance/design
of the oil/water separator to comply with UPRR's NPDES permit,
2
Electronic Filing - Received, Clerk's Office, April 22, 2009
which allowed oil sheens downstream of the permitted discharge point. A properly sized,
maintained and operated oil/water separator would not cause or allow sheen from its effluent.
Respondent's argument that the violations occurred
"in different years" is only
technically accurate but legally insufficient to be a cause for severance. The first incident was
observed on November
23,2005, and the second on or about February 19, 21006. There is less
than
90 days separating these incidents, which were observed in the same location- immediately
downstream
ofUPRR's oil/water separator. Such a vacuous argument provides no support to the
claim that two separate proceedings are warranted to avoid any prejudice to Respondent.
Respondent is erroneously arguing that
if violations occurred on the northern edge and
southern edge
of its property, separated only by a couple of months, two separate claims should
be brought because the locations
of the violations are not identical even though both violations
occurred on the same property owned by the same party. This kind
of position leads to absurd
results which results in the waste
of scarce resources and prejUdice to both parties.
This case in no way differs from cases involving POTW s where there are a few months
of BOD violations caused by a particular problem like undersized calrifiers and some months of
fecal coliform effluent violations caused by inadequate chlorination. No Court or the Board
would force the State to prosecute these violations separately
-they all involve the same
responsible party, the same facility and the same regulatory scheme - the NPDES program.
Absolutely no prejUdice would come to UPRR by trying this case in a single matter.
If any
prejudice would come, it would be to the State
if the Board allowed the matters to be severed as
the Board would be precluded from considering the pattern
of violations at this facility and
would have to waste scarce resources to essentially try the same matter twice.
3
Electronic Filing - Received, Clerk's Office, April 22, 2009
Theory of Liability
Respondent argues that" ... the State's theory ofliability as to each instance is distinct."
(Respondent's Motion p.5). This is incorrect. The Act imposed
malum prohibitum
liability on
parties under the Act. The Act is
"malum prohibitum,
there being no proof of guilty knowledge
or mens rea necessary to support a finding
of guilt"
Hindman v. The Pollution Control Board, 42
Ill. App.3d 766, 769, 356 N.E.2d 669,672 (1976).
Respondent contends that because the state can not identify the cause or source
of the
alleged November
23,2005 release and because the cause of the February 19, 2006 release was
not that
of a Union Pacific employee, UPRR cannot be held liable for the release. However,
contrary to Respondents assertion, the appellate court in
Bath v. Pollution Control Board,
10
Ill.App.3d 507, 294 N.E.2d 778 (1973), held that "knowledge, intent or scienter is not an element
of the case to be established by the Environmental Protection Agency at the hearing before the
Pollution Control Board upon the issue
of [pollution]"
Id.,
10 Ill.App.3d at 510, 294 N.E.2d at
781 (1973). Further, Illinois courts have found environmental liability even if the "discharges
were accidental and not intentional or that they were the result of an "Act of God" beyond
[defendant's]
control"
Freeman Coal Mining C01poration v. Pollution Control Board, 21
Ill.App.3d, 157,163,313 N.E.2d 616,621 (1974).
Even though the Act is not a strict liability statute, Illinois courts have repeatedly held
that ... "the analysis applied by courts in Illinois for determining whether an alleged polluter has
violated the Act is whether the alleged polluter exercised sufficient control over the source
of the
pollution"
Illinois v. Davinroy Contractors,
249 Ill.App.3d 788, 793, 618 N.E.2d 1282, 1286
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Electronic Filing - Received, Clerk's Office, April 22, 2009
(1993). In the case at bar, the Respondent exercised sufficient control over the rail yard, the
source
of the pollution,.
CONCLUSION
The Respondent erroneously asserts that both claims should be severed because the
"claims considered together would create an impermissible negative inference as to Respondents
liability" and the claims are "based on different standards". (Respondent's Motion p.4). Both
assertions are not supported by the facts. The claims should remain consolidated
"in the interest
of convenient, expeditious, and complete determination of claims." 35 Ill. Adm. Code §101.408.
Further, under a long line of Illinois environmental cases, the pertinent inquiry is whether or not
the Respondent had sufficient control over the source
of the pollution at the time of the discharge
of the pollutant.
It
does not matter whether the discharge was accidental or beyond the control
of the Respondent.
It
is undisputed that Respondent exercised sufficient control over the source
of the pollution at the time of the discharge.
Trying the matter together prejudices no party, provides an economy
of effort on the part
of all parties and avoids an awkward, arbitrary, inefficient and highly prejudicial position of
trying the same case twice.
Therefore, for the reasons stated above, the Board should dismiss Respondent's motion to
sever and hear this one consolidated claim unified by the same facts, the same responsible party,
the same regulatory program, and the same theory
of liability.
5
Electronic Filing - Received, Clerk's Office, April 22, 2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney General
ofthe State of Illinois
BY:
_kc~(~-----L.......:c=.=..nI4....:;......:;.~~
__
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau North
69 W. Washington St., Ste.
1800
Chicago, Illinois 60602
Tel: (312) 814-3816
Fax: (312) 814-2347
E-Mail: zbereket-ab@atg.state.il.us
G:\Environmental Enforcement\Z BEREKET-AB\UPRR\Pleading\Complainant'sResponsetoUPRR'sMotionto Sever. doc
6
Electronic Filing - Received, Clerk's Office, April 22, 2009
UNION PACIFIC RAILROAD COMPANY
, June 6,2006
File: Environmental Protection
Proviso
Yard, Melrose Park, IL
UPS Tracking # 1Z 63580022 1287441 1
Illinois Environmental Protection Agency
Ms. Beverly Booker
Bureau of
Water
CAS #19,
P.O. Box 19276
Springfield, IL 62794-9276
1400 Douglas Sl.
Stop 1080
Omaha,
NE 68179
jD)~©~,ITW)];~
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JUN 0 (
2006
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Org: Records Unit
cc: Beverly
Booker
Roger Callaway
Tim Kluge
Des Plaines Region, WPC
John Waligore, OLC
Emergency Response, Me #29
Agency reply due 07/05/2006
Re:
IEPA Violation Notice: M-2006-02009 Facility
1.0.
#: IL0002127 Incident # H-2006-
0193
Dear: Ms. Booker,
The following is a response to Violation Notice M-2006-02009 dated April 25, 2006
pursuant to Section 31 (a)(1) of the Illinois Environmental Protection Act, 415 ILCS
5/31(a)(1).
Attachment A
of the violation notice references an investigation conducted by the
Illinois EPA on February 19 and 22, 2006 of Union Pacific Railroad - Proviso Yard facility
1.0.
# IL0002127. Responses to each violation are explained with what actions have been
or
will be implemented and the time frame for implementation.
Attached for reference
is a copy of Union Pacific Railroads response to IEPA's
Incident Inquiry
Letter dated 3-1-2006. Together this letter and the response to the incident
inquiry form the response
to the violation notice.
DepOSited Contaminants
Union
Pacific Railroad operates a railroad classification yard and an intermodal
facility located in Cook County that encompasses approximately 500 acres of land. The
area is in
general bounded by Addison Creek to the east, The City of Melrose Park and
Northlake to the north, The. City of Berkley and Bellwood to the south and the Tri-State
Expressway and
City of Elmhurst to the west. Stormwater runoff from the railroad yard
facility, the surrounding municipalities, the Tri-State Expressway and adjacent industries
pass through a weir structure
located on the northern edge of the Union Pacific Railroad's
property. This weir structure serves
as the discharge point for the IL NPDES permit #
IL0002127.
'{ ,
The Global 2 Intermodal faCility occupies the souther.n property boundary of Union
Electronic Filing - Received, Clerk's Office, April 22, 2009
Pacific railroads operations. Global 2 Intermodal facility has two areas that have been
identified
in the Stormwater Pollution Prevention Plan that perform maintenance activities
to tractors and lift cranes used in intermodal operations. Outside contractors under contract
to Union Pacific Railroad perform these maintenance activities. Quarterly inspections are
performed by Union
Pacific Railroad to ensure best management practices are being
followed and petroleum products are stored properly. Spill absorbents are kept on hand
for emergencies at both the tractor garage and the
lift crane maintenance area. Structural
improvements to both areas include the installation of oil water separators at the tractor
garage and the
lift crane maintenance pad. These improvements are now schedule to be
installed the first quarter 2007.
Other
outside contractors and drivers of other intermodalequipment have access
to Global 2 Intermodal 24 hours a day 7 days a week. As part of an inbound inspection
procedure
all trucks, trailers and containers pass through an inspection gate where the
condition of the vehicle and equipment is part of an overall inspection procedure. Operating
personnel are trained to identify potential conditions that may cause environmental
problems while on Union Pacific property.
Contractors working for shipping companies and Union
Pacific Railroad are
observed
on a daily basis by onsite security personnel and railroad operating managers.
Equipment found to be in need of repair or where housekeeping needs improvement, are
directed to make corrections as required. Maintenance of vehicles (tractors and trucks) is
restricted
to certain areas of the facility.
Union
Pacific Railroad will continue to maintain and monitor the weir structure on
a
daily basis for visible contaminates. Notification of spills and releases of regulated
substances on railroad. property will be reported, as required and clean up activities will be
initiated. Non-regulated
materials released while in transportation will be removed as part
of the railroads annual track cleaning activities and disposed of in the appropriate manner.
Stormwater contamination from upstream and down stream adjacent
municipalities and
industries
will be brought to their attention and information forwarded to IEPA. Adjacent
industries
will be asked to correct conditions causing contaminated stormwater runoff.
While not required by NPDES permit IL0002127, a Stormwater Pollution Prevention
Plan (SWPPP)
has been written and implemented at both the railroad yard and intermodal
facility. Quarterly
and annual stormwater inspections of regulated source areas are
conducted and deficiencies corrected as required. The plan is reviewed on an annual basis
and updated as necessary.
A
Spill Prevention, Control and Countermeasure (SPCC) plan is in place at both
Proviso Yard and Global 2 Intermodal facility. Annual training is conducted for personnel
who are required handle or use petroleum products. The SPCC plan has been submitted
to the
Metropolitan Water Reclamation District of Greater Chicago for their review.
1
2
Electronic Filing - Received, Clerk's Office, April 22, 2009
Discharge of Contaminates
The weir provides stormwater treatment for source areas upstream of the structure.
The weir structure
is a three-compartment weir designed to separate petroleum products
from stormwater. Two rope skimmers provide a means
to remove oils from the water
surface. The treated water and oil mixture drain to an in ground process tank. Absorbent
booms and containment booms are also placed in the structure to aid in petroleum product
removal. Maintenance of the weir structure, process tank and absorbents continue. on a
daily basis.
An upstream groundwater source of contamination'has been identified
as a possible
source of petroleum contamination. The fueling facility located on the south side of the
Proviso
diesel shop has been re-built with a containment liner and a ground water
collection system, The existing stormsewer adjacent to the diesel shop has been slipped
lined
to prevent groundwater infiltration into the sewer. This site has been entered into the
Illinois Site Remeadiation Program (IL Inventory # 0311865222). The current construction
project was
completed in May 2006.
To improve oil separation a new in ground oil water separator will be installed in the
3
rd
quarter 2006 to replace the existing weir structure. A new discharge point will be
provided to industries located to the north of Union Pacific Railroad property.
Caused Offensive Conditions
The current weir structure continues to provide
oil-water separation within the
NPDES permit limits. Daily monitoring of the weir structure and the adjacent industries and
municipalities are conducted to prevent conditions where the weir will not function as
designed.
As required, .vacuum trucks and absorbent materials are used to supplement the
oil skimming operations from the water surface. Spills and releases of regulated
SUbstances to the environment, if they occur, are contained and cleaned up.
Installing a new oil separation system and segregating stormwater flow from other
industries will improve the quality of Union Pacific Railroads discharge.
Training
in stormwater pollution prevention and spill containment procedures are
given to affected employees on an annual basis. Periodic safety meetings are held where
spill
prevention and stormwater issues are discussed and solutions to correct conditions
implemented.
Maintenance of the railroad yard to include periodic cleaning of the track structure
will continue on an annual basis. Monitoring of stormwater flows from adjacent
muniCipalities and industries will continue. Where off-site contamination is found, IEPA will
be notified.
<I
Other non-specific "offensive conditions" will be dealt with on a case by case basis.
3
Electronic Filing - Received, Clerk's Office, April 22, 2009
If such a situation arises, employees are trained to notify the railroad's Response
Management Communication Center at .1-888-877-7267. Local emergency response
personnel and equipment are
available if conditions warrant action.
If you have any questions or require additional information, please contact Lee
Hammond at 402-544-8826.
Sincerely,
Q
.
~/~~-P
W. Lee Hammond
Manager Environmental
Field Operations
Attachment.
g:lmsword03\northernlcioseout5\WLH 4.25-06 IEPA NOV Proviso Weir
'f
4
Electronic Filing - Received, Clerk's Office, April 22, 2009
CERTIFICATE OF SERVICE
I, Zemeheret Bereket-Ab, an attorney, hereby certify that I caused a copy of
Complainant's Response in Opposition to Respondent's Motion to Sever, along with Notice of
Filing and Certificate of Service, to be served upon the service list on April 22, 2009, by regular
mail.
ZEMEHERET BEREKET-AB
NOTICE OF FILING AND CERT 4-22-09
Electronic Filing - Received, Clerk's Office, April 22, 2009
