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, January 8, 2010, I have filed with the Office of the Clerk of
the Illinois Pollution Control Board by electronic filing Union Pacific Railroad Company’s
Answer, along with Notice of Filing and Certificate of Service, a copy of which is attached
hereto and served upon you.
Respectfully submitted,
S
ONNENSCHEIN NATH & ROSENTHAL LLP
By: /s/ Thomas A. Andreoli
Attorneys for Respondent
Union Pacific Railroad Company
Thomas A. Andreoli
SONNENSCHEIN NATH & ROSENTHAL LLP
233 South Wacker Drive
Chicago, Illinois 60606
312.876.8000
tandreoli@sonnenschein.com
Electronic Filing - Received, Clerk's Office, January 8, 2010
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
ANSWER AND AFFIRMATIVE AND ADDITIONAL DEFENSES
ANSWER
Defendant, Union Pacific Railroad Company (“Union Pacific”), through its attorneys,
and for its Answer to plaintiff’s Complaint states 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, the 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 31 of the
Illinois Environmental Protection Act (“Act”), 415 ILCS 5/31 (2004).
ANSWER:
Union Pacific admits the People filed a complaint on or about July 16, 2007. To the
extent that the allegations in Paragraph 1 purport to describe or cite statutory provisions, such
provisions speak for themselves and no response is required. Union Pacific is without
knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 1
and, on that basis, denies the same.
Electronic Filing - Received, Clerk's Office, January 8, 2010
2
2.
The Illinois EPA is an agency of the State of Illinois created pursuant to Section 4
of the Act, 415 ILCS 5/4 (2004), and charged,
inter alia
, with the duty of enforcing the Act.
Additionally, pursuant to Section 402(b) of the federal Clean Water Act (“CWA), 33 U.S.C.
§ 1342(b), the Illinois EPA administers and enforces the CWA’s National Pollutant Discharge
Elimination System (“NPDES”) permit program within the State of Illinois.
ANSWER:
To the extent that the allegations in Paragraph 2 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required. To the extent that
the allegations in Paragraph 2 consist of opinion, argument and/or legal conclusions, no response
is required. Union Pacific is without knowledge sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 2 and, on that basis, denies the same.
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.
ANSWER:
Union Pacific admits that it is a corporation organized and existing under the laws of the
State of Delaware. Union Pacific admits that it is authorized to do business in the State of
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”).
ANSWER:
Union Pacific admits that it operates a classification yard, the Proviso Yard, at 5050 W.
Lake Street, Melrose Park, Ill. Union Pacific admits that it operates an intermodal facility,
Global II, located at 301 W. Lake Street, Northlake, Ill. Union Pacific further responds that the
Proviso Yard and Global II are different properties and denies that they are the same “Facility.”
Union Pacific denies any remaining allegations of Paragraph 4.
Electronic Filing - Received, Clerk's Office, January 8, 2010
3
5.
Stormwater and accumulated groundwater from the Facility are treated by passing
through an oil/water 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”).
ANSWER:
Union Pacific admits that NDPES Permit No. IL0002127 applies to a discharge point
located at the Proviso Yard. Union Pacific further responds that the Proviso Yard is located at
the downstream end of the regional storm water drainage basin and that the discharge point
drains an area larger than the Proviso Yard including offsite sources. Union Pacific admits that
Mud Creek receives the outflow from NPDES Permit No. IL0002127. Union Pacific admits that
Mud Creek connects with Addison Creek. Union Pacific admits that the discharge point
described in Paragraph 5 consisted of a weir structure in the past. Union Pacific further responds
that portions of the Proviso Yard have been enrolled in the Illinois Environmental Protection
Agency’s voluntary site remediation program since 2003 for storm water management
improvements, which have included replacement of the weir structure with best available
technology. In addition, Union Pacific responds that storm water discharge from the separate
Global II intermodal property was governed under a different general NPDES permit (No.
ILR003013) until approximately March 1, 2006. Union Pacific denies any remaining allegations
of Paragraph 5.
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.
ANSWER:
Union Pacific is without knowledge sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 6 and, on that basis, denies the same.
Electronic Filing - Received, Clerk's Office, January 8, 2010
4
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.
ANSWER:
Union Pacific is without knowledge sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 7 and, on that basis, denies the same.
8.
During the November 23rd Inspection, the Illinois EPA observed the rainbow and
silver colored sheen along the length of the oil/water separator structure, continuing past the final
weir in the structure, and, ultimately, in Mud Creek.
ANSWER:
Union Pacific is without knowledge sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 8 and, on that basis, denies the same.
9.
On February 19, 2006, or on a date better known to Respondent, a diesel fuel
release occurred at the Facility.
ANSWER:
Union Pacific admits that on or about February 19, 2006 a non-railroad, third-party
contractor spilled diesel fuel at Global II. Union Pacific denies any remaining allegations of
Paragraph 9.
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.
ANSWER:
Union Pacific is without knowledge sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 10 and, on that basis, denies the same.
Electronic Filing - Received, Clerk's Office, January 8, 2010
5
11.
On February 22, 2006 (“February 22nd Inspection”), representatives of the
Illinois EPA and the MWRDC returned to the Facility and met with a representative for the
Respondent.
ANSWER:
Union Pacific admits that on or about February 22, 2006 its employee, Lee Hammond,
met with Allen Andersen and Donald Klopke of the Illinois Environmental Protection Agency
and Joseph Salerno of the Metropolitan Water Reclamation District of Greater Chicago at
Global II and the Proviso Yard. Union Pacific denies any remaining allegations of Paragraph 11.
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.
ANSWER:
Union Pacific denies that its “representative informed Illinois EPA and MWRDC
representatives that one of [its] contractors had caused the fuel release.” Union Pacific admits
that its employee, Lee Hammond, informed certain representatives of the Illinois Environmental
Protection Agency and the Metropolitan Water Reclamation District of Greater Chicago that a
non-railroad, third-party contractor spilled diesel fuel at Global II on or about February 19, 2006.
Union Pacific denies any remaining allegations of Paragraph 12.
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.
ANSWER:
Union Pacific is without knowledge sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 13 and, on that basis, denies the same.
Electronic Filing - Received, Clerk's Office, January 8, 2010
6
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 in any State so as to
cause or tend to cause water pollution in Illinois, either
alone or in combination with matter from other sources, or
so as to violate regulations or standards adopted by the
Pollution Control Board under this Act.
ANSWER:
To the extent that the allegations in Paragraph 14 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
15.
Section 3.315 of the Act, 415 ILCS 5/3.315, (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.
ANSWER:
To the extent that the allegations in Paragraph 15 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
16.
Respondent, a Delaware corporation, is a “person,” as that term is defined in
Section 3.315 of the Act.
ANSWER:
To the extent that the allegations in Paragraph 16 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required. To the extent that
the allegations in Paragraph 16 consist of opinion, argument and/or legal conclusions, no
response is required. To the extent that any response is required, Union Pacific admits that it is a
Delaware corporation.
Electronic Filing - Received, Clerk's Office, January 8, 2010
7
17.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2006), provides the following
definition:
“Contaminant” is any solid, liquid, or gaseous matter, any odor, or
any form of energy, from whatever source.
ANSWER:
To the extent that the allegations in Paragraph 17 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
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.
ANSWER:
To the extent that the allegations in Paragraph 18 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required. To the extent that
the allegations in Paragraph 18 consist of opinion, argument and/or legal conclusions, no
response is required. To the extent that any response is required, Union Pacific denies any
remaining allegations of Paragraph 18.
19.
Section 3.545 of the Act, 415 ILCS 5/3.545 (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.
ANSWER:
To the extent that the allegations in Paragraph 19 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
Electronic Filing - Received, Clerk's Office, January 8, 2010
8
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 5/3.545 (2006).
ANSWER:
To the extent that the allegations in Paragraph 20 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required. To the extent that
the allegations in Paragraph 20 consist of opinion, argument and/or legal conclusions, no
response is required. To the extent that any response is required, Union Pacific denies any
remaining allegations of Paragraph 20.
21.
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 5/3.545 (2006).
ANSWER:
To the extent that the allegations in Paragraph 21 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required. To the extent that
the allegations in Paragraph 21 consist of opinion, argument and/or legal conclusions, no
response is required. To the extent that any response is required, Union Pacific denies any
remaining allegations of Paragraph 21.
22.
Section 3.550 of the Act, 415 ILCS 5/3.550 (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.
ANSWER:
To the extent that the allegations in Paragraph 22 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
Electronic Filing - Received, Clerk's Office, January 8, 2010
9
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.
ANSWER:
To the extent that the allegations in Paragraph 23 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required. To the extent that
the allegations in Paragraph 23 consist of opinion, argument and/or legal conclusions, no
response is required.
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.
ANSWER:
Deny.
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).
ANSWER:
Deny.
COUNT II
CAUSING, THREATENING OR ALLOWING WATER POLLUTION
1-13. Complainant realleges and incorporates by reference herein paragraphs 1 through
13 of Count I as paragraphs 1 through 13 of this Count II.
ANSWER:
Paragraphs 1-13 of Count II incorporate and re-allege preceding paragraphs; no response
is required. Union Pacific affirmatively incorporates and re-alleges its answers to paragraphs 1-
13 of Count I.
Electronic Filing - Received, Clerk's Office, January 8, 2010
10
14.
Section 12(d) of the Act, 415 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.
ANSWER:
To the extent that the allegations in Paragraph 14 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
15.
On at least two occasions, Respondent deposited petroleum products, which are
contaminants, onto the land in such place and manner as to create a water pollution hazard, in
violation of Section 12(d) of the Act, 415 ILCS 5/12(d)(2006).
ANSWER:
Deny.
COUNT III
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.
ANSWER:
Paragraphs 1-13 of Count III incorporate and re-allege preceding paragraphs; no response
is required. Union Pacific affirmatively incorporates and re-alleges its answers to paragraphs 1-
13 of Count I.
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
Electronic Filing - Received, Clerk's Office, January 8, 2010
11
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 with respect to the NPDES program.
ANSWER:
To the extent that the allegations in Paragraph 14 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
15.
Section 309.102(a) of the Illinois Pollution Control Board Water Pollution
regulations (“Board Water Pollution Regulations”), 35 Ill. 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.
ANSWER:
To the extent that the allegations in Paragraph 15 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
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).
ANSWER:
Deny.
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, 415 ILCS
5/12(f)(2006).
ANSWER:
Deny.
Electronic Filing - Received, Clerk's Office, January 8, 2010
12
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.
ANSWER:
Paragraphs 1-14 of Count IV incorporate and re-allege preceding paragraphs; no response
is required. Union Pacific affirmatively incorporates and re-alleges its answers to paragraphs 1-
14 of Count I.
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 …
ANSWER:
To the extent that the allegations in Paragraph 15 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
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 . . .
ANSWER:
To the extent that the allegations in Paragraph 16 purport to describe or cite statutory
provisions, such provisions speak for themselves and no response is required.
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.
ANSWER:
Deny.
Electronic Filing - Received, Clerk's Office, January 8, 2010
13
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.
ANSWER:
Deny.
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.
ANSWER:
Deny.
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).
ANSWER:
Deny.
AFFIRMATIVE AND ADDITIONAL DEFENSES
In addition to the foregoing denials, Union Pacific asserts the following Affirmative and
Additional Defenses.
FIRST DEFENSE
1.
Plaintiff’s claims for injunctive relief are moot.
SECOND DEFENSE
2.
Union Pacific lacked the capability to control the alleged releases that are the
subject matter of plaintiff’s complaint and, therefore, did not cause or allow or threaten the
alleged releases in violation of the Illinois Environmental Protection Act or other law.
THIRD DEFENSE
3.
Union Pacific undertook extensive precautions to prevent the intervening causes
of the alleged releases that are the subject matter of plaintiff’s complaint and, therefore, did not
Electronic Filing - Received, Clerk's Office, January 8, 2010
14
cause or allow or threaten the alleged release of diesel fuel in violation of the Illinois
Environmental Protection Act or other law.
WHEREFORE
, Union Pacific Railroad Company, prays for judgment as follows:
1.
That the Complaint be dismissed with prejudice;
2.
That judgment be entered in Union Pacific’s favor;
3.
That Union Pacific be awarded costs incurred in this action; and
4.
For such other and further relief as is just and proper.
Dated: January 8, 2010
Respectfully submitted,
SONNENSCHEIN NATH & ROSENTHAL LLP
By: /s/ Thomas A. Andreoli
Attorneys for Respondent
Union Pacific Railroad Company
Thomas A. Andreoli
Sonnenschein Nath & Rosenthal LLP
233 South Wacker Drive
Chicago, Illinois 60606
312.876.8000
tandreoli@sonnenschein.com
Electronic Filing - Received, Clerk's Office, January 8, 2010
STATE OF NEBRASKA
)
)
SS
COUNTY OF DOUGLAS
)
AFFIDAVIT OF RAMI
S. HANASH
I,
Rami S. Hanash, on oath, depose and state that I am the Regional Environmental
Counsel for the Union Pacific Railroad Company, and that I have read the foregoing Answer and
believe that the statements contained therein, which allege that Union Pacific has no knowledge
sufficient to form a belief as
to particular allegations in the Complaint at Law, are true.
FURTHER AFFIANT SA YETH NOT.
SUBSCRIBED AND SWORN TO
Before me this
~
day of January, 2010.
Notary Public
GENERAL NOTARY - State of Nebraska
DONNA M. COLTRANE
My Comm. Exp. May 6, 2012
Electronic Filing - Received, Clerk's Office, January 8, 2010
CERTIFICATE OF SERVICE
I, Thomas A. Andreoli, an attorney, hereby certify that I caused a copy of Union Pacific
Railroad Company’s Answer, along with Notice of Filing and Certificate of Service, to be served
upon the service list on January 8, 2010, by regular mail.
/s/ Thomas A. Andreoli
Thomas A. Andreoli
Electronic Filing - Received, Clerk's Office, January 8, 2010