1. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD  
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
 
GRAND PIER CENTER LLC )
AMERICAN INTERNATIONAL )
SPECIALTY LINES INSURANCE CO. )
as subrogee of
GRAND PIER CENTER LLC )
)
Complainants, ) PCB 05-157
) (Citizens Enforcement – Land)
v. )
)
RIVER EAST LLC )
CHICAGO DOCK AND CANAL TRUST )
CHICAGO DOCK AND CANAL COMPANY )
KERR-McGEE CHEMICAL LLC )
)
Respondents. )
 
COMPLAINANTS’ MOTION TO RECONSIDER THE BOARD’S
JANUARY 5, 2006, ORDER
 
 
Complainants Grand Pier LLC and American International Specialty Lines
Insurance Co. (collectively “Grand Pier”), move for limited reconsideration, pursuant to
Section 101.520 of the Illinois Pollution Control Board procedural rules, of the Board’s
January 5, 2006, Order. Specifically, Grand Pier seeks an order reinstating
Complainants’ eighth affirmative defense or striking Kerr-McGee Chemical’s sixth
affirmative defense.
1. On January 5, 2006, the Board issued an Order concerning then-pending
motions including Grand Pier’s motion to dismiss Kerr-McGee’s affirmative defenses,
Kerr-McGee’s motion to withdraw affirmative defenses and motion to amend remaining
affirmative defenses, and Kerr-McGee’s motion to dismiss Grand Pier’s counter-
complaint and to strike certain affirmative defenses.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
 
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2. In pertinent part for purposes of this motion, the Board granted Kerr-
McGee’s motion to dismiss Grand Pier’s eighth affirmative defense, which provides:
“Any injuries, damages or condition complained of by Kerr-McGee were caused by the
acts or omissions of third parties not under the control of Grand Pier.”
See
Jan. 5, 2006,
Order p.8.
3. The Board held that Grand Pier’s eighth affirmative defense was a denial
of the allegations in Kerr-McGee’s counter complaint rather than affirmative defense.
See id
. at 9.
4. Despite the fact that the Board dismissed Grand Pier’s eighth affirmative
defense, the Board allowed Kerr-McGee’s sixth affirmative defense to stand, which is
substantively equivalent to Grand Pier’s eighth affirmative defense. Kerr-McGee’s sixth
affirmative defense alleges: “Grand Pier’s claims are barred because of preceding,
intervening, and/or superceding acts of third parties or because of events which Kerr
McGee had no control.”
See id
. at 4.
5. Clearly, both Grand Pier’s eighth affirmative defense and Kerr-McGee’s
sixth affirmative defense assert that claims are barred due to acts of third parties over
which Grand Pier or Kerr-McGee, respectively, had no control. Grand Pier respectfully
argues that the Board’s ruling on this limited issue is inequitable and should be
reconsidered and Grand Pier’s eighth affirmative defense reinstated.
1
   
6. Grand Pier’s eighth affirmative defense is properly pled because it asserts
a new matter by which Kerr-McGee’s counter complaint is defeated.
See Ferris Elevator
1
In order for the Board to rule equitably, either both affirmative defenses must be
allowed to stand or they must both be stricken, but it is judicially inconsistent to allow
Kerr-McGee’s sixth affirmative defense to stand while striking Grand Pier’s eighth
affirmative defense.
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
 
3
Co., Inc. v. Neffco, Inc.
, 285 Ill.App.3d 350, 354, 674 N.E.2d 449, 452 (3d Dist. 1996);
Condon v. American Telephone and Telegraph Co., Inc.
, 210 Ill.App.3d 701, 709, 569
N.E.2d 518, 523 (2d Dist. 1991);
see also
Jan. 5, 2006, Order p. 2 citing
People v.
Community Landfill Co.
, PCB 97-193, slip op. at 3 (Aug. 6, 1998). The eighth
affirmative defense asserts that, after giving color to Kerr-McGee’s claims within its
counter complaint, all injuries asserted by Kerr-McGee were the result of the actions
taken by third parties over which Grand Pier lacked control.
7. As the Board concluded vis-à-vis Kerr-McGee’s sixth affirmative
defense, if the facts compassed by Grand Pier’s eighth affirmative defense are proven,
there is the possibility that Grand Pier could prevail.
See
Jan. 5, Order p. 7 citing
International Ins. Co. v. Sargent & Lundy
, 242 Ill.App.3d 614, 609 N.E.2d 842, 854 (1
st
 
Dist. 1993).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
 
4
 
WHEREFORE, Complainants Grand Pier LLC and American International
Specialty Lines Insurance Co. pray this Board reconsider its January 5, 2006, Order and
reinstate Complainants’ eighth affirmative defense. In the alternative, Complainants pray
this Board reconsider its January 5, 2006, Order and strike Kerr-McGee’s sixth
affirmative defense.
January 30, 2006
 
Respectfully submitted
 
  
  
GRAND PIER CENTER LLC and
AMERICAN INTERNATIONAL
SPECIALITY LINES INSURANCE CO.
 
 
By:
__s/Garrett L. Boehm, Jr.____________
 
One of Complainants’ attorneys
Frederick S. Mueller
Daniel C. Murray
Garrett L. Boehm, Jr.
Johnson & Bell, Ltd.
33 W. Monroe St., Suite 2700
Chicago, IL 60603
(312) 372-0770
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
 
5
 
Certificate of Service
 
The undersigned certifies he caused to be served the foregoing
COMPLAINANTS’
MOTION TO RECONSIDER THE BOARD’S JANUARY 5, 2006, ORDER
by U.S.
Mail on the 30th day of January, 2006, to:
 
John T. Smith II
COVINGTON & BURLING
1201 Pennsylvania Ave. N.W.
Washington, D.C. 20004-2401
 
Michael Connelly
CONNELLY, ROBERTS
& MCGIVNEY LLC
Suite 1200
One North Franklin St.
Chicago, IL 60606
Donald J. Moran
PEDERSEN & HOUPT
Suite 3100
161 North Clark Street
Chicago, IL 60601
 
 
 
 
Bradley P. Halloran
Illinois Pollution Control
Board
James R. Thompson Center
100 West Randolph St.
Suite 11-500
Chicago, Illinois 60601
 
 
 
 
  
  
  
  
 
s/Garrett L. Boehm, Jr._______
 
  
  
  
  
  
  
Garrett L. Boehm, Jr.
JOHNSON & BELL, LTD.
33 West Monroe Street, Suite 2700
Chicago, IL 60603
(312) 372-0770
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006

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