ILLINOIS POLLUTION CONTROL BOARD
August 20, 2009
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Respondent.
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PCB 08-07
(Enforcement - Water)
ORDER OF THE BOARD (by S.D. Lin):
On July 16, 2007, the Attorney General, on behalf of the People of the State of Illinois
(People) and at the request of the Illinois Environmental Protection Agency (Agency), filed a
complaint against the Union Pacific Railroad Company, a Delaware corporation (UPRC).
See
415 ILCS 5/31(c)(1) (2008); 35 Ill. Adm. Code 103.204. The complaint concerns UPRC’s rail
yard and intermodal facility located at 301 West Lake Street in Northlake, Cook County.
The People allege that on or before November 23, 2005, and February 19, 2006, UPRC
violated Sections 12(a) and 12(d) of the Environmental Protection Act (Act)
1
(415 ILCS 5/12(a),
12(d) (2008)) and 35 Ill. Adm. Code 302.203, 304.105, and 309.102(a). The People allege that
UPRC violated these provisions by: (1) causing or tending to cause water pollution; (2)
depositing contaminants upon the land in such a place and manner as to create a water pollution
hazard; (3) failing to comply with the terms and conditions of National Pollutant Discharge
Elimination System (NPDES) Permit No. IL0002127; and (4) violating water quality and
effluent standards.
Today the Board decides a contested motion to sever claims filed by UPRC. For the
reasons discussed below, the Board denies UPRC’s motion to sever the alleged violations.
In this order, the Board first reviews the procedural history of this case. The Board then
summarizes the People’s complaint. Next, the Board summarizes UPRC’s motion to sever
claims, as well as the People’s response and UPRC’s reply. After addressing procedural matters,
the Board provides a discussion of and ruling on the motion to sever claims.
PROCEDURAL HISTORY
1
All citations to the Act will be to the 2008 compiled statutes, because the provisions at issue
have not been substantively amended in the 2008 compiled statutes.
2
On July 16, 2007, the People filed a four-count complaint (Comp.) alleging that UPRC
had committed water pollution violations. In an order dated July 26, 2007, the Board accepted
the complaint for hearing. On April 3, 2009, UPRC filed a motion to sever claims (Mot.) and a
memorandum in support of that motion (Memo.). The People filed a response opposing UPRC’s
motion (Resp.) on April 22, 2009. On May 1, 2009, UPRC filed a reply in support of its motion
to sever claims (Reply).
PEOPLE’S COMPLAINT
The People allege that UPRC owns and operates a rail yard and intermodal facility
located at 301 West Lake Street in Northlake (Facility). Comp. at 2 (P4). The People also allege
that UPRC is a “person” as that term is defined by the Act.
Id.
at 4 (PP15-16);
See
415 ILCS
5/3.315 (2008) (definition of “person”). The People further allege that UPRC is a Delaware
corporation duly authorized to do business in Illinois.
Id.
at 2 (P3).
Count I
The People allege that stormwater and accumulated groundwater from the Facility are
treated using an oil/water separator (Separator) which consists of several weirs over which the
water passes prior to its discharge into Mud Creek, a tributary of Addison Creek. Comp. at 2
(P5). The People further allege that discharge of the Facility’s Separator-treated water is
authorized under the terms of NPDES Permit No. IL0002127 (NPDES Permit).
Id.
The People allege that on November 23, 2005, the Agency inspected the Facility after an
employee of the Metropolitan Water Reclamation District of Greater Chicago (MWRDC)
notified the Agency of a recent fuel oil release on the site. Comp. at 2 (PP6-7). The People
further allege that, during the November 23, 2005 inspection, the Agency 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 . . . over
the final weir in the Separator before being discharged into Mud Creek.”
Id.
at 2 (PP7).
The People allege that on February 19, 2006, or a date better known to UPRC, a diesel
fuel release occurred at the Facility. Comp. at 3 (P9). The People also allege that the Agency
and MWRDC confirmed the occurrence during a February 22, 2006 inspection.
Id.
at 3 (P11).
The People further allege that, during this inspection, a representative of UPRC informed the
Agency and MWRDC that one of UPRC’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
at the Facility.”
Id.
at 3 (P12). According to the People, the February 22, 2006 inspection
determined that, on February 19, 2006, “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 been
subsequently discharged into Mud Creek.” Comp. at 3 (P13).
The People allege that, “by causing, threatening or allowing the discharge of rainbow and
silver colored fuel oil sheen and the diesel fuel, both of which are ‘contaminants,’ to discharge
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into Mud Creek, a water of the State, [UPRC] caused, threatened or allowed water pollution . . .
in violation of Section 12(a) of the Act.” Comp. at 3 (P25), citing 415 ILCS 5/12(a) (2008).
Count II
The People allege that, on at least November 23, 2005, and February 19, 2006, UPRC
“deposited petroleum products which are contaminants onto the land in such a place and manner
as to create a water pollution hazard, in violation of Section 12(d) of the Act.” Comp. at 7 (P15),
citing 415 ILCS 5/12(d) (2008).
Count III
The People allege that “the discharge of petroleum products from the Separator into Mud
Creek” violated UPRC’s NPDES Permit and 35 Ill. Adm. Code 309.102(a). Comp. at 8 (P16).
The People further allege that, by violating 35 Ill. Adm. Code 309.102(a), UPRC also violated
Section 12(f) of the Act. Comp. at 9 (P17), citing 415 ILCS 5/12(f) (2008).
Count IV
The People allege that on November 23, 2005, and February 19, 2006, or dates better
known to UPRC, UPRC “caused or allowed petroleum products to leave the Separator at the
Facility and to enter Mud Creek.” Comp. at 10 (P17). The People also allege that, “[b]y
allowing the petroleum products to enter Mud Creek, [UPRC] thereby violated the water quality
standard found in 35 Ill. Adm. Code 302.203, as well as 35 Ill. Adm. Code 304.105, and Section
12(a) of the Act Comp. at 10 (PP18-19), citing 415 ILCS 5/12(a) (2008).
UPRC’S MOTION TO SEVER CLAIMS
UPRC requests that the Board sever the claims in this action and direct the People to
refile separate actions. Mot. at 1. UPRC states that the four counts in the People’s complaint
improperly consolidate claims arising from two “separate and unrelated” events in November
2005 and February 2006.
Id.
UPRC argues that requiring UPRC to defend these claims in a
single action would result in material prejudice against UPRC because a finding of liability as to
either claim “would create an impermissible negative influence as to [UPRC’s] liability related
to the other.”
Id
. at 2. UPRC further argues that, due to the consolidated damages in the
complaint, “[a]n objective damages determination as to either alleged event would also be
impossible.”
Id
.
UPRC asserts that the November 2005 and February 2006 events are unrelated because
they occurred on different properties, at different times. Memo. at 1. UPRC argues that,
according to the People’s complaint, the November 2005 event occurred at UPRC’s Proviso
Yard, while the February 2006 event occurred at Global II intermodal facility.
Id.
at 2.
According to UPRC, Proviso Yard and Global II are two separate properties with separate
purposes.
Id
. UPRC states that Proviso Yard is a classification yard at 505 W. Lake Street in
Melrose Park, where UPRC services trains, while Global II is an exchange hub located at 301 W.
Lake Street in Northlake, where third-party contractors exchange shipping products.
Id.
UPRC
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claims that the State acknowledged Proviso Yard and Global II as distinct facilities by using
separate violation notices and classifications for each location during the investigation.
Id.
at 5.
UPRC asserts that the complaint alleges no causal connection between the November
2005 and February 2006 events. Memo. at 3. With respect to the November 2005 event, UPRC
claims that the People’s complaint “does not identify the cause or source” of the alleged release
at Proviso Yard.
Id.
UPRC asserts that, in contrast, the People’s complaint alleges that the
February 2006 “‘diesel fuel release’” at Global II was caused by one of UPRC’s contractors.
Id.
UPRC argues that the complaint does not contain any allegations connecting the two events.
Id.
In addition, UPRC argues that both incidents involve different theories of liability,
witnesses and potential evidence. Memo. at 5. According to UPRC, the People’s theory of
liability with respect to the November 2005 event is akin to “‘strict liability,’” in that “the
existence of the alleged release sufficed to impose liability.”
Id
. UPRC contends that the
People’s allegations respecting the February 2006 event involve a different theory of liability
because they stem from an operational release caused by a third-party on UPRC property.
Id
.
UPRC insists that severance is necessary to avoid prejudice to UPRC and asserts that
severance would “serve the convenient, expeditious and complete determination of the issues”
and offer the parties an opportunity to settle either of the claims individually. Memo. at 6.
PEOPLE’S RESPONSE
The People oppose UPRC’s motion to sever claims and ask the Board to deny the motion.
The People argue that the complaint properly consolidates the People’s claims because both
claims involve the same responsible party, facility, NPDES Permit, and theory of liability. Resp.
at 1.
The People argue that Proviso Yard and Global II occupy the same facility because they
are both part of the same 500 acre parcel of UPRC’s land, though they have different street
addresses. Resp. at 2, citing People’s Exhibit A (Letter from Lee Hammond: “UPRC’s Manager
of Environmental Field Operations response to VN dated June 6, 2006”)
. The People emphasize
that both Proviso Yard and Global II are located “at and below” UPRC’s oil/water Separator,
which receives stormwater runoff from the entire property and is governed by a single NPDES
permit.
Id
. The People also note that the alleged releases in both areas are separated by less than
90 days. Resp. at 3.
The People argue that the alleged events at Proviso Yard and Global II both involve
“inadequate operation/maintenance/design of the oil/water Separator” in violation of the same
NPDES permit. Resp. at 2-3. According to the People, severance would not only waste the
Board’s resources by requiring the Board to “try the same matter twice,” it would prejudice the
People by precluding the Board from considering “the pattern of violations at [UPRC’s] facility.”
Id.
at 3.
The People argue that the same theory of liability is applicable to both the November
2005 and February 2006 allegations, explaining that “the pertinent inquiry is whether [UPRC]
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had sufficient control over the source of pollution at the time of the discharge of the pollutant.”
Resp. at 4, citing Illinois v. Danvinroy Contractors, 249 Ill.App.3d 788, 793 (1998).
UPRC’S REPLY
UPRC restates its argument that the November 2005 and February 2006 events alleged in
the complaint occurred on separate properties at different times, and insists that the events bear
no causal connection to each other. Reply at 1-2. UPRC argues that Illinois courts have
recognized that “requiring a party to try two unrelated claims in the same case is reversible
error.”
Id.
, citing Mount v. Dusing, 414 Ill. 361, 367-68 (1953) and Rogola v. Silva, 16
Ill.App.3d 63, 64-65, 68 (1st Dist. 1973). UPRC notes that the People’s response cites no
contrary authority. Reply at 2.
UPRC contends that the People’s response contains three independent procedural
deficiencies. Reply at 2. First, UPRC argues that the People’s response was untimely and thus
the People waived any objection to UPRC’s motion.
Id.
at 2-3. Second, UPRC claims that the
Board cannot consider the statements in the People’s motion because they are unverified and
inaccurate.
Id.
at 3-4. Finally, UPRC argues that the Board “should not credit the [People’s]
attempted rewrite of its complaint, via its response” because “[t]he [c]omplaint does not allege
any ‘pattern of violations’ by [UPRC].”
Id.
at 5-6.
PROCEDURAL MATTERS
Before addressing the substance of UPRC’s motion to sever claims, it is necessary to
address two procedural matters.
First, the Board notes that the People’s response to UPRC’s motion to sever was
untimely because it was electronically filed two days after the April 20, 2009 deadline set by the
Hearing Officer.
See
People v. Union Pacific Railroad
, PCB 08-07, Hearing Officer Order
(March 23, 2009). Section 101.500(d) of the Board’s Procedural Rules provides, in pertinent
part:
Within 14 days of service of a motion, a party may file a response to the motion. If no
response is filed, the party will be deemed to have waived objection to the granting of the
motion, but the waiver of objection does not bind the Board or the hearing officer in its
disposition of the motion. 35 Ill. Adm. Code 101.500(d).
The People’s response was not accompanied by a motion for leave to file instanter and no
justification for the delayed response was given. The Board will, nevertheless, address the
arguments raised in the People’s response in order to ensure a thorough treatment of the issues.
The Board notes that UPRC does not argue, and there is no evidence, that UPRC was prejudiced
by the People’s two-day filing delay.
Second, UPRC argues that the Board cannot credit facts asserted in the People’s response
because they are unverified.
See
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
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Section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-109]”). However, to support their
statements, the People attach a letter which appears to be a copy of UPRC’s response to the
Agency’s April 25, 2009 violation notice.
See
Resp. Exh. A. UPRC does not specify any manner
in which the proffered document is deficient or untrustworthy. Under these circumstances, the
Board will consider the letter in its deliberation as a business record kept in the ordinary course
of business by the Agency.
DISCUSSION
UPRC urges the Board to sever the People’s claims so that a finding of liability as to one
claim will not result in a “negative influence” on decision of the other. The Board’s procedural
rules provide:
Upon 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, the Board may sever claims involving any number of parties. 35 Ill. Adm.
Code 101.408.
UPRC argues that severance would serve the convenient, expeditious and complete
determination of the issues in this case because the November 2005 and February 2006
allegations are factually unrelated and thus require different theories of liability.
The People, however, contend that the two incidents involve the same parties, the same
facility, the same NPDES Permit, and the same theory of liability. The People argue that
severance would waste the Board’s resources and prejudice the People by preventing the Board
from considering UPRC’s “pattern of violations.” In reply, UPRC contends that the Board
should disregard the People’s argument because a pattern of violations is not alleged in the
complaint.
Factually, the Board finds that the events alleged in the complaint involve the same
parties and the same facility. Further, although the People’s allegations involve two transactions
which occurred at different times and may involve different witnesses and evidence, both
allegations stem from the discharge of contaminants into Mud Creek via UPRC’s oil/water
Separator, which is governed by the same NPDES permit. The connection between both of the
People’s claims and the oil/water Separator is apparent from the face of the complaint.
Moreover, the same theory of liability applies to both of the People’s claims. With
respect to either claim, the People must show that UPRC “has the capability of control over the
pollution” or that UPRC “was in control of the premises where the pollution occurred.”
See
People v. A. J. Davinroy Contractors, 249 Ill. App. 3d 788, 793-96 (5th Dist. 1993);
see also
Meadowlark Farms, Inc. v. PCB,17 Ill. App. 3d 851, 861(5th Dist. 1974).
Based on the similarities between the alleged violations, the Board concludes that UPRC
would not be materially prejudiced by defending the People’s claims in a consolidated action.
The Board also notes that Dusing and Rogala are distinguishable from the instant case. The
claims remanded for severance in Dusing involved different parties, different theories of liability,
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and different witnesses.
See
414 Ill. 361 at 369 (noting that both the defendant mother and her
son were sued regarding a will contest, while the mother alone was the defendant in an action to
set aside a deed. Not only were the events separated by one year, but, as the court
acknowledged, “a higher degree of mental capacity [was] required to make a valid deed than to
execute a will”). As in Dusing, the claims in Rogala were “based upon two entirely separate
transactions . . . involved different parties and were based upon different theories.” 16 Ill. App.
3d 63 at 68. Unlike the severed claims depicted in Dusing and Rogala, the People’s claims share
the same parties, same facility, same regulatory scheme, and the same theory of liability.
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Under these circumstances, the Board finds that severance would not further the
convenient, expeditious, and complete determination of the claims in this case. Respondent has
not demonstrated that any prejudice would result from failure to sever; the Board is well able to
avoid carrying “any impermissible negative influence” over from its determinations concerning
one count to another. Based on the connection between the People’s claims and the adequacy of
UPRC’s oil/water Separator, hearing the claims together would be in the interest of
administrative economy. As argued by the People, the Board finds that conducting two
proceedings regarding alleged violations of the same NPDES Permit at the same facility by the
same party would waste the resources of the Board and the parties involved.
CONCLUSION
For the reasons set forth in this order, the Board denies UPRC’s motion to sever claims.
IT IS SO ORDERED.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on August 20, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
2
The Board also notes that Dusing and Rogala concern causes of action and legal theories which
are completely different from those involved in the People’s action against UPRC. Dusing
involved a will contest and a title dispute (
see
414 Ill. 361 at 369), while Rogala involved a
breach of warranty and a mental distress claim.
See
16 Ill. App. 3d 63 at 68. Consequently, the
Board finds that the decisions in Dusing and Rogala are of limited relevance in deciding UPRC’s
motion.
