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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)
)
)
)
)
)
)
)
)
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PCB 2008-007
(Enforcement - Water)
VIA ELECTRONIC FILING
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 N ath
& Rosenthal LLP
233 South Wacker Drive
Chicago, Illinois
60606
Please take notice that today, October 23,2009, I have filed with the Office of the Clerk
of the Illinois Pollution Control Board by electronic filing Complainant's Response to Union
Pacific Railroad Company's Motion for Reconsideration, 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:~Z
..............
~~~K=.=...LJu:~~
__
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
Electronic Filing - Received, Clerk's Office, October 23, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS, )
ex rei.
LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
)
PCB:
2008-007
Complainant,
)
)
(Enforcement - Water)
vs.
)
)
UNION PACIFIC RAILROAD
)
COMPANY, a Delaware Corporation,
)
VIA ELECTRONIC FILING
)
Respondent.
)
RESPONSE TO UNION PACIFIC RAILROAD COMPANY'S
MOTION FOR RECONSIDERATION
On
July 16, 2007, the People ofthe State of Illinois,
ex rei.
Lisa Madigan, Attorney
General
of the State of Illinois (Complainant), filed a complaint against Union Pacific Railroad
Company (Respondent), before the Illinois Pollution Control Board (Board) for violations
of the
Illinois Environmental Protection Act.
On April 3, 2009, Respondent filed a Motion to Sever. On August 20,2009, the Board
issued an order denying the Motion to Sever.
On September 29,2009, Respondent filed a
Motion to Reconsider the Board's
Order denying the Motion to Sever.
Introduction
Respondent has made three arguments in support
of its motion to reconsider: (1) there
were material factual errors, (2) the Board improperly relied on hearsay evidence in making its
determination, and (3) the Board misapplied the law
by ruling against Respondent.
Legal Standard
"The intended purpose of a motion to reconsider is to bring to the court's attention newly
discovered evidence, changes in the law, or errors in the court's previous application
of existing
Electronic Filing - Received, Clerk's Office, October 23, 2009
law. The decision to grant or deny a motion for reconsideration lies within the discretion of the
circuit court and will not
be reversed absent an abuse of that discretion." Farmer's Automobile
Insurance Association v. Universal Underwriters Insurance Company, 348 Ill.App.3d 418, 422,
810 N.E.2d 562, 566
(1
sl Dist. 2004).
Respondent's motion for reconsideration fails to meet anyone of the criteria set forth
under Illinois case law
and should therefore be dismissed as being a vacuous motion devoid of
any merit worth considering.
Argument
A.
Respondent has not presented newly discovered evidence.
One of the factors that the Board will consider in reviewing a motion to reconsider is
whether
or not the petitioner has brought to the Board's attention newly discovered evidence. 35
Ill. Adm. Code §
101.902. Respondent contends it has offered new evidence because it has
included a general stormwater
NPDES permit.
It
does not dispute the permit covering the
oil/water separator. Respondent simply rehashes its previously discredited argument that the two
locations where the pollution was found are
"entirely separate" for the purposes for this
litigation.
Respondent is alleging that two different areas,
both owned, operated, and controlled by
Respondent, which are connected by land that is owned and operated by Respondent, which the
'two incident areas and the connecting land are used by Respondent to operate its business are
"entirely separate" because they have different street addresses and are used for different
purposes
in the same business owned and operated by the same party.
Complainant alleges violations stemming from two separate incidents.
Both incidents
involved the failure
of the oil/water separator to control oil runoff properly. Respondent owns
2
Electronic Filing - Received, Clerk's Office, October 23, 2009
and operates the oil/water separator. The oil/water separator is governed by NPDES Pennit No.
IL0002127. In one
of the incidents, the runoff ended up in 301 W. Lake Street, Northlake,
Illinois, property that Respondent owns, operates and controls
2417
for its business. In the other
incident, the runoff ended up in
5050 W. Lake Street, Northlake, Illinois, a property that
Respondent owns, operates and controls
2417
for the same business. Thus, Respondent is
arguing that two incidents, which resulted from the failure
of the same oil/water separator
owned, operated and controlled
by Respondent, which led to runoff that discharged to two places
owned, operated, and controlled
by Respondent, which occurred less than three months apart, are
so different so as to require the Board
to sever the claims.
This same argument was made in the Motion to Sever and the Board properly analyzed
the argument and rejected it. Respondent has not presented any new evidence that could serve as
a basis for reconsideration.
B.
Change in the Law.
As the Appellate Court in Farmers' Automobile, 348 Ill. App.3d 418, 422,810
N.E.2d 562, 566 (Dist. 1 sl 2004), ruled, "The intended purpose of a motion to reconsider is to
bring to the court's attention
... changes in the law ... ". Respondent fails to cite to any changes
in the law that can help the Board to reconsider its previous ruling.
C
The Board did not improperly rely on hearsay evidence.
The Board did not improperly rely on hearsay evidence, and even if it had, the ultimate
ruling would not change.
Absent new evidence
or a change in the law, the Board may not grant a motion to
reconsider without a showing
of a misapplication of existing law. Fanner's Automobile
Insurance Association, 348 Ill.App.3d at 422, 810 N.E.2d at 566.
3
Electronic Filing - Received, Clerk's Office, October 23, 2009
Respondent contends that the Board misapplied the hearsay rules when the Board
admitted a
letter-set on Respondent's letterhead, signed by Respondent's employee, a manager
of Environmental Field Operations at Respondent's head office who has authority to speak on
behalf of the company on environmental issues. Notably, Respondent does not deny the
authenticity
or veracity of the letter.
A writing must
be made in "the regular course of business" to satisfy the hearsay
exception.
35 Ill. Adm. Code § 101.626(e}.
In
its regular course of business, Respondent must
navigate several regulatory regimes to conducts its business. Responding to questions and
concerns
of regulatory agencies is part of the regular course of business for Respondent. This
particular letter was written
by Respondent's official in response to a Violation Notice issued by
the Illinois EPA and kept at the Illinois EPA's archive in the regular course of the Illinois EPA's
business. [See Affidavit of Sharon Dowson, Manager of the Bureau of Water, Division of Water
Pollution Control Records Unit at the Illinois EPA, attached as Exhibit A].
Even if the letter should not have been relied on, the Board could appropriately rule that
the violations occurred at a single site. Respondent argued that the violations occurred at two
separate sites, and the claims should be severed. The complaint alleges that a single source
of
pollution, release of fuel oil occurred at Respondent's facility which manifested itself at the
oil/water separator. The Board could appropriately rule that the Complainant's characterization
of the violations, based on the Complaint itself, show that no prejudice would occur by not
severing the claims.
D.
There
was
no error in the Board's conclusion
that no material prejudice would occur.
Disagreeing with a Board's order is not a sufficient basis to support a motion to
reconsider. Respondent has not shown that any prejudice would occur
by not severing the
4
Electronic Filing - Received, Clerk's Office, October 23, 2009
claims. It has not shown that the Board misapplied the current law to the facts. Respondent has
merely regurgitated the same argument it made in the discredited motion to sever.
Absent new evidence
or a change in the law, the Board may not grant a motion to
reconsider without a showing
of a misapplication of existing law. Farmer's Automobile
Insurance Association, 348 Ill.App.3d at 422,
810 N.E.2d at 566. In one case cited in support of
Respondent's motion to reconsider, the motion to reconsider at issue addressed a court's
interpretation
of a legal issue that predicated further analysis. Itasca Bank and Trust Company v.
ThorleifLarson and Son, Inc., 352 Ill.App.3d 262, 265,815 N.E.2d 1259, 1261 (2004).
Respondent alleges that the Board misapplied the law because the Board reached a
different conclusion than the one Respondent was hoping for. It has made no new arguments
about how it believes the law was misapplied and why it would be so prejudiced.
Even
if every factual assertion made by Respondent were true, it would still need to show
prejudice. In the underlying motion to sever, Respondent argued two theories
of prejudice: (1)
that the Board would necessarily make "impermissible negative inferences" because some
alleged violations were
"strict liability" and others were "operational" liability and (2) it would
be too difficult to determine individual damages absent severing the claims. Respondent has
offered no authority as to how and why prejudice would result because
of the damages issue.
There is no mention
of the individual damages argument in the Motion to Reconsider or
the memorandum in support of that motion, so presumably Respondent has dropped the
argument. Even
if it has not, the argument is without merit. The pollution came from the
malfunction
of the same oil/water separator. Even ifit were "difficult" to compute the individual
damages, it would not matter because all the pollution stemmed from the same source.
Additionally,
"difficult" is not "impossible." Further, it is unclear why any "difficulty" in
5
Electronic Filing - Received, Clerk's Office, October 23, 2009
calculating damages would lead to prejudice. The Board has extensive experience in calculating
damages in the myriad
of cases it has decided. Respondent has offered no authority for why the
Board would not be capable
of addressing this issue.
Complainant has never asserted that the offenses were
"strict liability", merely that they
were
malum prohibitum,
where liability is appropriate if the polluter had the "capability of
controlling [the source of] the pollution." Phillips Petroleum Company v. Illinois Environmental
Protection Agency, 72 Il1.App.3d
217,220,390 N.E.2d 620, 623 (1979), People v. AJ. Davinroy
Contractors, 249 Il1.App.3d 788, 793, 618 N.E.2d 1282, 1286 (1993). Surely Respondent is not
denying that it controls the oil/water separator for which it has sought, and received, an NPDES
permit for operating. Respondent also owns and operates, as part
of its business, the property
where both fuel releases were found. Respondent has not denied control
of this property, and has
admitted that it uses the property for its business.
It
is unclear how Respondent could run such a
complicated business without the capability
of control over its premises.
Additionally, Respondent has offered no authority for why the Board would not be
competent to hear a case involving
"strict liability" and "operational" liability together.
It
merely asserts that the Board will necessarily draw an "impermissible negative inference."
Respondent's contention that the Board will be unable to properly apply law to facts is a
malicious assault on the intellectual integrity
of the Board and is not a sufficient basis to support
a motion to reconsider.
Respondent's arguments are not even internally consistent. Respondent's
characterization
of the alleged violations is inconsistent with its requested relief. Complainant
has alleged four violations. Each
of these violations occurred twice, with the resulting pollution
manifesting itself at the oil/water separator. Respondent has characterized some
of the violations
6
Electronic Filing - Received, Clerk's Office, October 23, 2009
as "strict liability" offenses and others as "operational" offenses. Respondent has not specified
which violations were "strict liability" and which were "operational," so some work must be
done to determine which claims Respondent seeks to have severed.
Counts I, II, and IV of the complaint have "allow" as the operative behavior. This has
been consistently held
by the Illinois courts to be
malum prohibitum.
Phillips Petroleum
Company, 72 Ill.App.3d at
220, 390 N.E.2d at 623, A.J. Davinroy Contractors, 249 Ill.App.3d at
793,618 N.E.2d at 1286. The courts have held that the Respondent must have control over the
source
of the pollution for a finding of liability. Respondent has characterized the need for
control as "operational," distinguishing it from the other "strict liability" violations. Count Ill's
operative behavior is "discharge", which seems to fit Respondent's classification of
"operational". Thus, if Respondent is to be believed, then all violations are "operational" and
thus there is no need to sever the claims.
The logic
of Respondent's argument seems to require the claims be severed into four
actions.
One of Respondent's theories of prejudice requires the counts to be separated by the
nature
of the violation. Another theory requires the counts to be separated by location.
Separating by the nature of the violation will not relieve the purported issues that separating by
location will address, and vice-versa. Thus, Respondent is apparently asking the Board to sever
the case into four actions, all
of which will involve the same parties and witnesses, because the
two areas where the fuel release was discovered were different parts ofthe same facility and the
Board
Will be unable to properly apply law to facts.
In any event, ascertaining what Respondent specifically meant in its memorandum is
unnecessary. Respondent's oil/water separator malfunctioned on two separate occasions.
On
November 23, 2005, the Illinois EPA observed a rainbow/silver sheen on the water going over
7
Electronic Filing - Received, Clerk's Office, October 23, 2009
the final weir of the oil/water separator. This was the effect of a fuel oil release that occurred at
the
Proviso Yard facility. On February 19,2006, the effect of a fuel release which occurred at
the Global II property was observed again at the oiVwater separator. Both releases were
observed at the oil/water separate.
Proviso Yard and Global II are property owned, operated, and
controlled
by Respondent. Respondent has never denied that it controlled, or had the capability
of controlling, both areas and the oil/water separator.
In
fact, in its June 6, 2006 response to the
VN, Respondent admits to problems with the separator and proposes,
"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." (See June 6, 2006, letter p. 3 attached as Exhibit A to Complainant's Response
in
Opposition to Motion to Sever"). The same witnesses would be called for all the violations.
If anything, severing the claims would prejudice Complainant's ability to resolve the case in a
timely and efficient manner.
Conclusion
In
its Motion to Reconsider, Respondent has not presented any newly discovered
evidence, has not pointed to any changes in the law, and was incapable of alleging any
misapplication of the law other than regurgitating the same argument it put forward in the
Motion to
Sever.
8
Electronic Filing - Received, Clerk's Office, October 23, 2009
WHEREFORE, for the reasons stated above, Complainant respectfully request that the
Illinois Pollution Control Board deny Respondent's motion to reconsider the
Board's order of
August 20,2009, and deny assess costs for responding to this frivolous motion, and to provide
such other relief as the Board deems appropriate.
BY:
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
•
ZEMEHERET BEREKET-AB
Environmental Bureau
Assistant Attorney General
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-3816
G:\Environmental Enforcement\Z BEREKET-AB\UNION PACIFIC\Pleading\Response To Motion To Reconsider IO-22-09.Doc
9
Electronic Filing - Received, Clerk's Office, October 23, 2009
OCT-22-2009 13:10
DLC LEGAL
P.02
AFFIDAVIT OF SHARON DOWSON
I, Sharon Dowson, certify \Ulder penalty of petjury pursuant to Section 1-109 of the
TIlinois Code
of Civil Procedure, 735 ILeS 5/1-109 (2008), that the statements set forth in this
affidavit are
true and correct, and further state that if called upon to testify in this matter, I"would
competently testify as follows:
1.
I am currently employed by the TIlinois Environmental Protection Agency
("lllinois EPA"), as Manager of the Bureau of Water, Division of Water Pollution Control
Records
Unit.
2.
I have been employed by the lllinois EPA as Manager of the Bureau of Water,
Division
of Water Pollution Control Records Unit since October 1,2003.
3.
As Manager of the Bureau of Water, Division of Water Pollution Control Records
Unit, my duties and responsibilities include, ensuring that the illinois EPA Bureau of Water,
Division
of Water Pollution Control maintains proper records of and letters and correspondence
/w.
received from other entities.
4.
As
Manager of the Bureau of Water, Division of Water Pollution Control Records
Unit, I supervise the maintenance of records.
5.
The following attached document is a true and accurate copy
of the original,
official record in the custody
of the lllinois EPA, Bureau of Water, Division of Water Pollution
Control files:'
June 6,
2006, Union Pacific Railroad Company response to Violation
Notice Number
M-2006-02009
6.
I directed my staff to identify, locate and copy the record described
in
paragraph 5
of this affidavit.
1
Electronic Filing - Received, Clerk's Office, October 23, 2009
OCT-22-2009 13:11
DLC LEGAL
7.
To the best of my knowledge and belief, the record attached hereto is a true and
accurate copy
of Bureau of Water records
m~tained
in Springfield, Illinois.
"!liI.,.
~~~
Sharon Dowson
.
SUBSCRIBED AND SWORN to before me
this 22nd day of October, 2009.
13
M
OTARY
a1.
PUBLIC
B~
2
P.03
Electronic Filing - Received, Clerk's Office, October 23, 2009
CERTIFICATE OF SERVICE
I, Zemeheret Bereket-Ab, an attorney, hereby certify that I caused a copy of
Complainant's Response to Union Pacific Railroad Company's Motion for Reconsideration,
along with a Notice
of Filing and a Certificate of Service, to be served upon the persons listed on
the Notice of Filing, by regular mail.
ZEMEHERET BEREKET-AB
NOTICE OF FILING AND CERT 4-22-09
Electronic Filing - Received, Clerk's Office, October 23, 2009
