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,
vs.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Respondent.
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VIA
ELECTRONIC FILING
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NOTICE OF FILING
John Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, IL 60601
Bradley P. Halloran
Hearing
Officer
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
W. Lee Hammond
Union Pacific Railroad Company
1400 Douglas Street
Stop 1080
Omaha,
NE 68179
Please take notice that today, May
1,2009, I have filed with the Office of the Clerk ofthe
Illinois Pollution Control Board by electronic filing a Reply in Support of Union Pacific Railroad
Company's Motion to Sever, along with Notice
of Filing and Certificate of Service, a copy of
which is attached hereto and served upon you.
Thomas
A.
Andreoli
SONNENSCHEIN NATH
&
ROSENTHAL LLP
233 South Wacker Drive
Chicago, Illinois
60606
312.876.8000
tandreoli@sonnenschein.com
Respectfully submitted,
SONNENSCHEIN NATH
&
ROSENTHAL LLP
By: /s/ Thomas
A.
Andreoli
Attorneys for Respondent
Union Pacific Railroad Company
Electronic Filing - Received, Clerk's Office, May 1, 2009
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,
vs.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Respondent.
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)
)
) PCB 2008-007
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)
)
VL4 ELECTRONIC FILING
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REPLY IN SUPPORT
OF UNION PACIFIC RAILROAD COMPANY'S
MOTION TO SEVER
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, and in support of its Reply to the Response of the Attorney
General
of the State of Illinois (the "State") states as follows:
Introduction
Union Pacific moved the Board to sever this action and direct the State to re-file separate
actions, because the Complaint improperly consolidates claims arising from two separate and
unrelated alleged releases. These alleged releases took place at
different times:
November 2005
and February 2006. They also took place on
separate properties:
Union Pacific's Proviso Yard
("Proviso Yard") at 5050 W. Lake Street in Melrose Park, Illinois, and its Global II intermodal
facility
("Global II") at 301 W. Lake Street in Northlake, Illinois. The cause ofthe alleged
release in each instance bears
no connection
to the other. The resulting claims involve different
Electronic Filing - Received, Clerk's Office, May 1, 2009
theories of liability, witnesses and potential evidence. Trying these two unrelated sets of facts in
the same action would result
in material prejudice to Union Pacific.
The courts have recognized that the prejudice inherent in requiring a party to try two
unrelated claims in the same case 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). The State's response cites no contrary authority.
Indeed, the State acknowledges that "an action involving materially different issues may be
severed by the
court." (Resp. 2 (quoting
Dusing,
414 Ill. at 367-68)).
The
State's response also provides three independent grounds for granting Union
Pacific's motion:
•
First,
the State late-filed its response in violation of the Hearing Officer's March
23,2009 Order, without requesting or receiving leave from the Hearing Officer or
the Board. The
State has waived any objection to the motion.
•
Second,
Union Pacific verified its motion. The State did not verify its response,
although the response purports to contradict the verified facts
Union Pacific
presented. The Board cannot consider the unverified and inaccurate statements
contained in the State's response. 35 Ill. Adm. Code § 101.504.
•
Third,
the Board should not credit the State's attempted rewrite of its Complaint,
via its response, in an effort to avoid severance. The Complaint does not allege
any "pattern of violations" by Union Pacific, which is a red herring argument.
(Resp.3). The Complaint does not allege any causal connection between the
November
2005 or February 2006 releases. Indeed, the alleged releases have no
connection whatsoever other than the
State's ultimate claim that each release
separately resulted in violations
of the Illinois Environmental Protection Act (the
"Act") or the Board's regulations.
As a matter
oflaw, the State must prove each and every alleged violation of the Act and
the Board's regulations on its own terms and cannot subject
Union Pacific to liability by
innuendo. Requiring Union Pacific to defend these unrelated claims in a single action would be
in error, because a finding
of liability as to either one ofthe alleged releases would create an
impermissible negative inference as to
Union Pacific's liability related to the other. Union
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Electronic Filing - Received, Clerk's Office, May 1, 2009
Pacific believes that, once the evidence has been heard, neither alleged release will support a
finding ofliability. Contrary to much
of the argument in the State's response, however, that
question is
not
before the Board on Union Pacific's motion. The motion merely seeks to avoid
the unfairness and material prejudice created by the Complaint's improper consolidation
of
claims. Severance is not only the proper remedy, it also will 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.
Argument
A.
The State Has Waived Any Objection To Severance
Pursuant to the Hearing Officer's Order, dated March 23,2009, Union Pacific timely
filed its Motion to Sever on April 3,
2009. The Hearing Officer's Order required the State to
respond on or before April
20, 2009. The State, without leave, late-filed its response on
April 22, 2009, after the date set by the Hearing Officer (and after the date that otherwise would
have applied under the Rules). The Board's General Rules provide that a party may request
more time to respond to a motion by filing a motion for extension
oftime. 35 Ill. Adm. Code §
10 1.500( d). The Rules also provide that "[i]f no response is filed, the party will be deemed to
have waived objection to the granting of the motion."
Id.
Because the State did not file a motion
for extension of time, and did not file a response to Union Pacific's motion on or before April 20,
2009, the Board should find that the State has waived objection to severance of its actions.
B.
The State's Unverified And Inaccurate Fact Assertions Cannot Be Considered
Union Pacific verified its motion in accordance with Section 101.504 of the Board's
General Rules.
35 Ill. Adm. Code § 101.504 ("Facts asserted that are not of record in the
proceeding must be supported by oath, affidavit, or certification in accordance with Section 1-
109 of the Code of Civil Procedure [735 ILCS 5/1-109]."). Union Pacific asserted specific facts
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Electronic Filing - Received, Clerk's Office, May 1, 2009
in support of severance in its Motion. (Mot.
&
Mem. of Law,
~~
1-9). Among them, Union
Pacific
asserted that the November 2005 and February 2006 releases took place on different
properties. The two properties are separately fenced and located in and accessed through
different street addresses in different municipalities.
Union Pacific further stated that the two
properties serve entirely separate purposes and are staffed with different personnel. The
Proviso
Yard
is staffed with Union Pacific employees; the Global II facility is staffed with outside
contractors.
In its unverified response, the
State repeatedly and inaccurately contradicts Union
Pacific's verified motion and asserts that the Proviso Yard and Global II are the same thing.
They are not.
As variously formulated by the State, the two separate properties are "the same
facility," are "located on the same parcel of land, just in different locations on the parcel," and
are
"the same property owned by the same party." (Resp. 1-3). The State also asserts 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
of land."
(Id.
at 2). These unverified and
inaccurate statements are improper under the Rules, and the Board, pursuant to 35 Ill. Adm.
Code
§ 101.504, cannot credit them in opposition to Union Pacific's motion.
At a practical level, these statements reflect a basic misunderstanding
of the nature and
operation
of Global II and the Proviso Yard. They are not the same nor does Union Pacific
or
the State treat them that way. As documented in the Union Pacific letter attached to the State's
response (Resp. Ex. A), the Proviso Yard and Global II each have its own Stormwater Pollution
Prevention
Plan (SWPPP) and Spill Prevention, Control and Countermeasure (SPCC) plan.
While both Global II and the
Proviso Yard drained indirectly to a discharge point served by the
same
NPDES permit at the time of the alleged releases, so did other various unrelated
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Electronic Filing - Received, Clerk's Office, May 1, 2009
municipalities and industries, as the State's response also admits. (Resp. Ex. A.). Moreover, as
shown
in Union Pacific's motion, the State conducted its investigations of the alleged November
2005 and February 2006 events at all times under separate violation notices and classifications
(W-2005-00535 and M-2006-02009).
C.
There Is No Pattern
Of Violations
Alleged
The State also argues, without citation to any authority, that its claims should be
consolidated because each
of the alleged releases involved an "inadequate" oil water separator.
The State argues that consolidation of its claims is appropriate so that the State may prove a
"pattern of violations" by Union Pacific. This argument fails on three essential grounds. First, it
has no basis in the Complaint, which does not purport to allege any
"pattern" of violations.
Rather, the Complaint simply consolidates claims arising from two separate alleged releases
which, based
on the face of the Complaint, have no causal connection whatsoever.
Second, the State argues that "[t]his case in no way differs from cases involving POTWs
where there are a few months of BOD violations" equally fails.
(See
Resp. 3). The Complaint,
however, does not alleged any continuous time period or causal nexus connecting the alleged
November
2005 and February 2006 releases. The Complaint addresses each of the alleged
releases as a distinct and separate event. The February 2006 release allegedly was caused by an
actual operational release by a non-railroad third-party contractor at Global
II.
(Compl. '1['1[9,
12). The November 2005 allegedly resulted from a separate and distinct fuel oil release at the
Proviso Yard's locomotive fueling pad. (Compl. '1['1[6-8). To analogize these unrelated releases,
in the State's words, to "months of fecal coliform effluent violations caused by inadequate
chlorination" by a publicly owned treatment works (Resp. 3) does not pass the straight-face test.
Third, as noted above, the
State must prove each and every alleged violation of the Act
and the Board's regulations on its own terms. This requirement is both a legal requirement and a
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Electronic Filing - Received, Clerk's Office, May 1, 2009
matter of basic fairness. The State cannot obtain a finding ofliability by consolidating separate
and unrelated claims in the hope that one or the. other will
stick-i.e.,
"If Union Pacific isn't
liable for this, then it should be for that." Such an approach is impermissible, because it renders
a fair and objective determination on liability and damages impossible.
Finally, the State devotes a significant portion
of its argument to whether, despite the
Complaint's distinct theories ofliability, the State will be able to prove liability for either alleged
release under the
Act. (Resp. 4-5). This argument is irrelevant to the relief sought in Union
Pacific's motion, which does not go to the merits. What is on point, however, is the entirely
different set
of facts and circumstances presented in the Complaint in the instance of each
alleged release, including importantly the existence
of different causes, witnesses and potential
evidence. Severance is not only the appropriate procedural remedy, it is essential to the
convenient, expeditious and complete determination
of the issues.
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Electronic Filing - Received, Clerk's Office, May 1, 2009
Conclusion
WHEREFORE, for these reasons and as support in its verified Motion to Sever and
supporting Memorandum
of Law, 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: May
1, 2009
Thomas
A.
Andreoli
Sonnenschein Nath
&
Rosenthal LLP
233 South Wacker Drive
Chicago, Illinois
60606
312.876.8000
tandreoli@sonnenschein.com
Respectfully submitted,
SONNENSCHEIN NATH
&
ROSENTHAL LLP
By: /s/ Thomas
A.
Andreoli
Attorneys for Respondent
Union Pacific Railroad Company
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Electronic Filing - Received, Clerk's Office, May 1, 2009
VERIFI(;A TJON
Under penalties as provided by la,\' pl.lrSllant to Section J -I 09 of the Code of Civil
Procedure, the undersigned ccl1ifics that the
statcmcnt~ ~ct
fiwth in
thi~
instnllrlcnt
al'l.~
trut! and
correct, excepl aN to maHt!rs therein staled 10 be on information and belief and [IS to sllch m[ltters
[hI;: undt:rsigned certifies us uforesaid thal he verily believt!s the snme to be true.
Regi01ml Environmental Counsel
Union Pad fic
Electronic Filing - Received, Clerk's Office, May 1, 2009
CERTIFICATE OF SERVICE
I, Thomas
A.
Andreoli, an attorney, hereby certify that I caused a copy of the Reply in
Support
of Union Pacific Railroad Company's Motion to Sever, along with Notice of Filing and
Certificate
of Service, to be served upon the service list on May 1, 2009, by regular mail.
/s/ Thomas
A.
Andreoli
Thomas
A.
Andreoli
Electronic Filing - Received, Clerk's Office, May 1, 2009
