The town of Cicero has pushed back against a lawsuit brought by one of the country’s largest railroads, saying a judge should block BNSF’s bid for an injunction preventing Cicero from enforcing a massive sewer rate increase against the railroad, in part, because the increase is tied to flooding problems allegedly caused by BNSF’s big rail yard.
Cicero further warned that similar sewer rate increases could be coming soon against other industrial and commercial customers operating in the near west suburban community.
Cicero’s contentions were laid out in briefs filed in Chicago federal court July 1, in response to the legal action brought by freight railroad BNSF.
Renato Marriotti
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“The Town has broad authority in areas of local public health, safety, and welfare. Properly maintaining a sewer system is central to that mission,” Cicero wrote in its response brief. “According to the last Census, the Town is composed of economically disadvantaged racially diverse residents…
“BNSF, one of the richest corporations in the world, now seeks to have an extraordinary remedy in this case so it does not have to pay. And BNSF seeks this extraordinary remedy despite creating this problem by filling its property several feet above the ground, which not only caused enormous additional strain on the Town’s system, but also created flooding in the Town,” Cicero wrote.
BNSF sued Cicero in federal court in early June, taking aim at an ordinance enacted by Cicero last December. The ordinance rewrote the town’s sewer rate schedule for railroads.
BNSF argued the ordinance illegally targeted only the railroad for the massive sewer increases.
The new ordinance “requires railroads – and only railroads – to pay an exorbitant $350 per acre charge for monthly sewer use.”
Previously, railroads had been billed $27.42 per acre for sewer services in Cicero.
According to the complaint, the ordinance boosted BNSF’s sewer bill by 1,250%, from $6,643 per month to $90,300.
Because the rate is assessed by acre, and not by actual sewage discharge, BNSF said the town has given it no way to reduce that charge, by putting less sewage into the town’s wastewater system, for instance. The railroad further noted it cannot also simply relocate.
Cicero ordinances also require BNSF to connect its massive intermodal railyard in Cicero to the town’s sewage system.
According to the complaint, Cicero has since threatened to force BNSF to cease operations at its rail yard unless it pays a sewer bill of more than $395,000.
In its complaint, BNSF seeks a court order prohibiting Cicero from enforcing the ordinance, or taking action against the railroad. They argue Cicero’s ordinance and enforcement actions are preempted by federal law, as the town’s actions interfere “with railroad transportation by discriminating against transportation by rail.”
Further, they asserted the sewer rate structure constitutes an illegal local tax on railroads.
In response, Cicero says its ordinance doesn’t “discriminate” against the railroad. The town said its ordinance and new rate hikes were modeled after a similar ordinance applied to horse racing track, Hawthorne International Race Course, which similarly was assessed a sewage rate based on acreage, and not actual use.
Further, Cicero said the rate increases were justified to help the town offset alleged flooding in Cicero, allegedly caused by paving activities in BNSF’s railyard.
Cicero asserted improvements at the railyard have resulted in massive stormwater runoff that “looks like a waterfall or river during times of increased rainfall,” and causes flooding in residential neighborhoods, as well. The alleged flooding has allegedly placed a strain on Cicero’s sewer system, which is a so-called “combined system” that handles both stormwater and sanitary sewage.
Cicero called BNSF a “poor corporate citizen, in general.”
In a separate motion, Cicero asked the court to reject BNSF’s request for a court order further protecting information concerning BNSF’s history of improvements and work conducted at its Cicero railyard.
In reply, BNSF said Cicero’s allegations about flooding can’t hold up against what it says is the core legal question of the case:
Whether Cicero’s ordinance and enforcement threats constitute an illegal discriminatory tax on railroads.
“Cicero does not argue that the sewer system did not function before Cicero amended the Ordinance, or that the sewer system cannot continue to function safely based on the prior rates (which BNSF continues to pay),” BNSF wrote.
“Most importantly, if Cicero needs to raise rates to ensure proper functioning of its sewer system, then it must do so evenhandedly. The focus of BNSF’s motion is whether Cicero’s ordinance discriminates against rail.”
Cicero is represented by attorney Michael Del Galdo and others with the Del Galdo Law Group, of Berwyn.
BNSF is represented by attorneys Renato Marriotti, Holly H. Campbell and Sara L. Chamberlain, of the firm of Thompson Coburn LLP, of Chicago and St. Louis, as well as attorneys with the firm of Munger Tolles & Olson, of San Francisco.