RECpVED
BEFORE THE ILLINOIS
CLERKS OFFICE
POLLUTION CONTROL BOARD
SEP 222005
GRAND PIER CENTER LLC
)
STATE OF ILLINOIS
AMERICAN INTERNATIONAL
)
Pollution Control Board
SPECIALTY LINES INSURANCE CO.
)
as subrogee of GRAND
PIER CENTER LLC
)
)
Complainants,
)
)
PCB 05-157
v.
)
(Enforcement)
)
RIVER EAST LLC
)
CHICAGO DOCK AND CANAL TRUST
)
CHICAGO DOCK AND CANAL COMPANY
)
KERR-McGEE CHEMICAL LLC
)
)
Respondents.
)
TO: Frederick S. Mueller
Donald J. Moran
Bradley Halloran
Daniel C. Murray
Pedersen & Houpt
Hearing Officer
Garrett L. Boehm, Jr.
161 North Clark Street
Illinois Pollution
JOHNSON & BELL, LTD.
Suite 3100
Control Board
55 East Monroe Street
Chicago, IL 60601-3242
James R. Thompson
Suite 4100
Center
—
Suite 11-500
Chicago, IL 60603-5803
Chicago, IL 60601
NOTICE OF FILING
PLEASE TAKE NOTICE that on September 22, 2005, we caused to be filed with the
Illinois Pollution Control
Board
in the James R. Thompson Center, Chicago, Illinois, TRONOX
LLC’s, FORMERLY KERR-MCGEE CHEMICAL LLC, COMBINED MOTION TO
WITHDRAW CERTAIN AFFIRMATIVE DEFENSE AND FOR LEAVE TO FILE
AMENDMENTS TO AFFIRMATIVE DEFENSES TO COMPLAINANTS’ COMPLAINT,
INSTANTER,
copies of which are served upon you along with this notice.
Tronox LLC
By:____
,.~—15neofitsatto~Øy&
Michael P. Connelly
Garrett C. Carter
Connelly Roberts & MeGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
Tele: (312) 251.9600
1:\2470\040\Notice of Filing—S 09.2205
CERTIFICATE OF SERVICE
I, Gabi Banat, a non-attorney, being first sworn on oath, depose and state that I
served the attached documents on the attorneys of record by mailing true and correct
copies in a properly addressed, sealed envelope with appropriate postage affixed and
depositing same in the U.S. mail located at One North Franklin Street, Chicago, Illinois,
before 5:00 p.m. on September 22,
2005.
Subscribed and sworn to
before me September 22, 2005.
OFFICIAL SEAL
KRISTIt4A L. JUDGE
NOTARY PUELIC STATE OF ILLINOIS
l:\2470\040\pleadings\cos040405
RECEIVED
CLERKS
OFFICE
BEFORE THE ILLINOIS
em ~
POLLUTION CONTROL BOARD
c ~
2005
STATE OF ILLINOIS
GRAND PIER CENTER LLC,
)
Pollution Control Board
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
as subrogee of Grand Pier Center LLC,
)
)
Complainants/
)
Counter-Complaint Respondents,
)
)
PCB 2005-157
v.
)
(Enforcement)
)
RIVER EAST LLC,
)
CHICAGO DOCK AND CANAL TRUST,
)
CHICAGO DOCK AND CANAL COMPANY,
)
)
Respondents,
)
)
KERR-McGEE CHEMICAL LLC,
)
)
Respondent/
)
Counter-Complaint Complainant
)
)
TRONOX LLC’S COMBINED MOTION TO WITHDRAW CERTAIN
AFFIRMATIVE DEFENSE AND FOR LEAVE TO FILE AMENDMENTS TO
AFFIRMATIVE DEFENSES TO COMPLAINANTS’ COMPLAINT,
INSTANTER
Respondent, Tronox LLC, formerly Kerr-McGee Chemical LLC (“Tronox”), for
its Combined Motion to Withdraw Certain Affirmative Defenses and for Leave to File
Amendments to its Affirmative Defenses to Complainants’, Grand Pier Center LLC and
American International Specialty Lines Insurance Co. as subrogee of Grand Pier Center
LLC (collectively, “Grand Pier”) Complaint states as follows:
Grand Pier filed its Complaint on February 25, 2005. Tronox, after its motion to
dismiss was denied, filed its Answer and Affirmative Defenses to Grand Pier’s
Compliant on June 13, 2005. On July
5,
2005, Grand Pier filed its motion to dismiss
Tronox’s Affirmative Defenses. On September 12, 2005, the hearing officer enteredan
order requiring Tronox to respond to Grand Pier’s motion to dismiss by September 22,
2005. (A copy of the September 12, 2005, Order is attached as Exhibit A.)
Tronox now seeks to withdraw the first, second, third, fourth, and tenth ofits
affirmative defenses, and to file, pursuant to 735 ILCS
5/2-6
16,
Amendments to
Affirmative Defenses to Grand Pier’s Complaint pursuant to 735 ILCS 5/2-6 16, a copy of
which is attached as Exhibit B.
WHEREFORE, Tronox LLC, formerly Kerr-McGee Chemical LLC, respectfully
requests that the Illinois Pollution Control Board grant its motion to withdraw the first,
second, third, fourth, and tenth of its affirmative defenses and grant Tronox leave to file
Amendments to Affirmative Defenses to Grand Pier’s Complaint,
instanter.
Respectfully submitted,
Tronox LLC
By:___
of its A~rfi~ys
Michael P. Connelly
Garrett C Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
312.251.9600
Peter J. Nickles
J.T. Smith II
Thomas E. Hogan
COVINGTON & BURLING
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20044-7566
(202) 662-6000
Attorneys for Respondent
Tronox LLC
ILLINOIS POLLUTION CONTROL BOARD
September 12, 2005
GRAND PIER CENTER LLC, and
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO., as
subrogee ofGrand Pier Center LLC,
)
)
Complainants,
)
)
v.
)
PCBO5-l57
)
(Citizens Enforcement
—
Land)
RIVER EAST LLC, CHICAGO DOCK AND
)
CANAL TRUST, CHICAGO DOCK AND
)
CANAL COMPANY, and KERR-MCGEE
)
CHEMICAL, LLC,
)
)
Respondents.
)
HEARING OFFICER ORDER
On September 8, 2005, all parties participated
in a telephonic status conference with the
hearing officer. Respondent Kerr-McGee Chemical, LLC. (Kerr-McGee), was directed to file its
response to complainants affirmative defenses on or before September 14, 2005. Complainants’
motion to dismiss Kerr-McGee affirmative defenses, filed July
5,
2005, was also discussed.
Over complainants’ objection, Kerr-McGee was given until September 22, 2005, to file its
response to complainants’ motion to dismiss affirmative defenses.
The parties or their legal representatives are directed to participate in a telephonic status
conference with the hearing officer on October 13, 2005, at 11:45a.m. The telephonic status
conference must be initiated by the complainant, but each party is nonetheless responsible for its
own appearance. At the status conference, the parties must be prepared to discuss the status of
the above-captioned matter and their readiness for hearing.
IT IS SO ORDERED.
~J
2
e~aaJ~~•
~
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND PIER CENTER LLC,
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
)
as subrogee of Grand Pier Center LLC,
)
)
Complainants!
)
Counter-Complaint Respondents,
)
)
PCB 2005-157
V.
)
(Enforcement)
)
RIVER EAST LLC,
)
CHICAGO DOCK AND
CANAL
TRUST,
)
CHICAGO DOCK AND CANAL COMPANY,
)
)
Respondents,
)
)
KERR-MCGEE CHEMICAL LLC,
)
)
Respondent!
)
Counter-Complaint Complainant
)
AMENDMENT
TO CERTAIN AFFIRMATIVE DEFENSES
Respondent Tronox LLC, formerly Kerr-McGee Chemical LLC, (“Tronox”), by
way of amendment to and in support of its fifth, sixth, seventh, eighth and ninth Affirmative
Defenses,’ respectfully incorporates by reference and adopts herein the specific factual averments
contained in its Counter-Complaint2 and further amends those Affirmative Defenses as follows:
FIFTH,
SIXTH,
AND SEVENTH AFFIRMATIVE DEFENSES
With respect to Affirmative Defenses Five, Six, and Seven, Tronox, in addition to
incorporating by reference and adopting herein the factual averments contained in the Counter-
Tronox’s Answer and Affirmative Defenses is attached hereto as Exhibit 1.
2 Tronox’s Counter-Complaint is attached hereto as Exhibit 2.
~II
L~J
Complaint, specifically avers as follows:
1.
Before acquiring the property generally denoted by the address 200 East
Illinois Street, Grand Pier retained one or more environmental consultants to conduct
environmental reviews that included the 200 East Illinois Street site.
2.
This environmental review process indicated that a site immediately to the
east of 200 East Illinois Street and on the other side of North Columbus Drive at 316 East Illinois
Street was undergoing cleanup pursuant to a 1996 unilateral administrative order (UAO) issued by
the U.S. Environmental Protection Agency, pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§ 9601
et. seq.,
to address
contamination by thorium resulting from the historical operations of the Lindsay Light Co. in this
area ofChicago.
3.
In April 1999, Grand Pier’s environmental consultant offered to conduct a
file review to investigate the nature of the environmental concern for an additional cost. Neither
Grand Pier nor any consultant to Grand Pier conducted a file search at the EPA to
learn
the
particulars of the then-ongoing cleanup activities.
4.
Grand Pier knew or should have known that, until construction ofNorth
Columbus Drive in the mid-1980s, the properties at 316 East Illinois Street and 200 East Illinois
Street were contiguous. Moreover, a file search at the EPA of the then-ongoing cleanup would
have revealed that characterization ofthe contamination pertaining to the 316 East Illinois Street
site indicated that pockets of thorium residues extended beyond the Western propertyboundary
beneath sidewalks and North Columbus Drive.
5.
Although Grand Pier and/or its consultants and contractors, conducted
subsurface borings at
the
200 East Illinois Street site,
none was addressed to the possibility of
2
thorium residues despite the fact that Grand Pier knew or should have know of the presence of
thorium residues and/or the possibility of the presence of thorium residues.
6.
The pavement covering
the 200 East Illinois Street site acted as a shield to
prevent human exposure to the “gamma radiation” associated with thorium residues.
7.
In a September 1999 Enforcement Confidential Addendum regarding paved
areas adjacent to the Lindsay Light II Site, EPA determined that the radioactive material in the
soils was not water soluble and thus did not present a water contamination risk and that the
shielding effects of the asphalt, concrete, and overburden prevent the release of the radiation to
humans or the environment.
8.
EPA also determined in the September 1999 Enforcement Confidential
Addendum that the radioactive materials would be released to the environment if the shielding
materials were disturbed or if a person tunneled into the radioactive materials. The September
1999 Enforcement Confidential Addendum pertains to the Action Memorandum accompanying an
Administrative Order on Consent regarding the Lindsay Light II Site.
9.
In January 2000, Grand Pier began to remove the pavement on the surface
of the 200 East Illinois Street site, to excavate the site, and to dispose of that material at the
Beverly Gravel Site, a quarry in Elgin, Illinois. Grand Pier undertook these actions to prepare for
construction of a commercial building despite the fact that Grand Pier knew or should have known
that its actions would cause a risk to human health and the environment from exposure to gamma
radiation.
10.
Only by Grand Pier’s removal of the pavement and excavation of the site
for construction of a commercial development, was the public and the environment exposed to the
risks of thorium.
3
11.
Grand Pier undertook the removal of the pavement and excavation of the
site for its own economic benefit. Tronox did not stand to benefit economically from Grand Pier’s
commercial development activities.
12.
In February 2000, EPA directed cessation of these excavation activities
pending a survey to determine whether the excavation would expose thorium residues.
13.
After a survey by EPA personnel indicated the presence of thorium
residues, EPA amended a 1996 unilateral administrative order with respect to the 316 East Illinois
Street site to direct thorium removal activities at the 200 East Illinois Street site by Grand Pier.
14.
EPA also directed the removal of the thorium residues that Grand Pier had
disposed of at the Beverly Gravel Site.
EIGHTH AFFIRMATIVE DEFENSE
Counts I, II, and III of the Complaint are preempted by Section 113(0(2) of the
Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42
U.S.C.
§ 9613(0(2), because, with respect to the
200 East Illinois Street site, Tronox is a person
who has resolved its liability to the United States for some or all of a response actioanrSorsome
or all of the
costs of such action in a judicially approved settlement referred to in 42 U.S.C.
§
9613(fl(2). See In the Matter of Reading Co., 115 F.3d 1111, 1117 (3d Cir. 1997) (holding that
common law remedies are preempted where the defendant has settled liability pursuant to Section
113(0(2)); see also Crown Cork and Seal Co.. Inc. v. Clark Equip. Co., 907 F. Supp. 147, 151
(M.D. N.C. 1995) (dismissing state law
claims in light ofcontribution protection afforded by
Section 113(0(2)); Drevo Corp. v. Zuber, 804 F. Supp. 1182, 1185 (D. Neb. 1992) (“The courts
have consistently enforced CERCLA by providing settling
parties with immunity from any claim
regarding matters addressed in the settlement with the government provided tht non~sett1ingparty’s
4
claim is in substance a claim for contribution, even though the claim may be called something
else.”); United States v. Pretty Products, Inc., 780 F. Supp. 1488 (S.D. Ohio 1991) (holding that
the contribution protection afforded by a settlement agreement referred to in Section 113(0(2)
preempted state law claims based on indemnity, breach of contract, and various equitable theories).
NINTH AFFIRMATIVE DEFENSE
With respect to Counts I, II, and III of the Complaint, Respondent is entitled to
contribution protection under 42 U.S.C.
§
9613(0(2) because, with respect to the 200 East Illinois
Street site, Tronox is a party to an agreement specified in 42 U.S.C.
§ 9613(0(2) and the costs
sought in the Complaint are matters addressed in the agreement.
Respectfully submitted,
Tronox LLC
By:
One ofi~~jtorneys
Michael P. Connelly
Garrett C Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite
1200
Chicago, Illinois 60606
312.251.9600
Peter
J.
Nickles
J.T. Smith II
Thomas E. Hogan
COVINGTON & BURUNG
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20044-7566
(202) 662-6000
Attorneys for Respondent
Tronox LLC
5
BEFORE
TIlE ILLINOIS
0
POLLUTION CONTROL BOARD
JUN 13 2066
E
GRAND
PIER CENTER LLC
AMERICAN INTERNATIONAL
)
~
IWNOIS
SPECIALTY
LINES
INSURANCE
CO.
)
‘ oar
as subrogee of
GRAND PIER CENTER LLC
)
Complainants,
)
)
PCB 05-157
‘I’.
)
(Citizens Enforcement
-
Land)
)
RiVER EAST
LLC
CHICAGO DOCK AM)
CANAL ThUST
)
CHICAGO DOCK
AND CANAL COMPANY
)
KERR-McGEE CHEMICAL
LLC
)
Respondents.
)
ANSWER
OF KERR-McGEE CHEMICAL LLC
Respondent Kerr-McGee Chemical LLC, in answer to Complainants’ Complaint,
states as follows:
AS
TO THE ALLEGED
NATURE
OF
TIlE
ACTION
1.
This is a citizen suit brought to
enforce
Sections
12(a), 12(d)
and
21(e)
of the
Illinois Environmental Protection
Act (the Act) (415 ILCS
5/1
et seq.), as amended,
directing Respondents
to abate and
remediate certain environmental contamination, and
for
cost recovery i~ithrespect
to any costs
Incurred
by
Grand
Pier Center LLC (Grand Pier) and
American International Specialty Lines Insurance
Co. (AISLIC), or to be Incurred by Grand
Pier and AISLIC, in performing response activities
at the site identified by the United States
Environmental
Protection Agency (TJSEPA) as the
RV3
North Columbus Drive Site (theRV3
Site) In Chicago,
Illinois.
1.
Respondent
admits that the statements in paragraph 1 characterize the
Con4Mainants’ action.
AS
TO
JURISDICTION AND VENUE
2.
For each of Complainants’
claims, the Illinois
Pollution Control Board
hasjurisdiction and authority
to
declare and enter judgment
of
the rights and responsibifitles
of the
parties
to
this citizen suit pursuant
to
35 IAC
103.200
and Sections 5(d), 31(d) and
33(a)
of the
Act.
fl~ii
LU
2.
Respondent denies the allegations of paragraph 2.
3.
Complainant Grand Pier Center LLC (Grand Pier) is an illinoIs limited
liability company, with
Its principal office In Chicago, Ililnois. Grand Pier was issued a
policy of Insurance by American International Specialty Lines Insurance Co.
3.
Respondent is without
knowledge or information
sufficient to form a belief
as to the
truth
of the allegations of paragraph 3.
4.
ComplaInant
American International Specialty
Lines Insurance Co.
(AISLIC) is a corporation, with Its principal office in New York, New York. AISLIC Is
subrogated to certain claims
that
Grand Pier has
against Respondents for damages
Respondents caused
to Grand Pier.
4.
Respondent is without knowledge or information sufficient to form a belief
as to the truth of the alLegations of paragraph 4.
5.
Respondent River East LLC, formerly known as CityFront
Center
LLC, Is a Delaware limited
liability company authorized to do business in illinois, with its
principal office In Chicago,
Illinois.
River East LLC is sued as successor of and successor in
Interest toRespondents Chicago Dock and Canal
Trust,
and Chicago Dock and Canal
Company.
5.
Respondent is without knowledge or information sufficient to form a belief
as to the truth of the allegations of paragraph
5.
6.
Respondent Chicago Dock and Canal Trust,
an
illinois business trust, Is
sued as the successor
of
and
successor In interest to Chicago Dock
and Canal Company.
Chicago Dock
and Canal Trust has
also been
known as CltyFront Acquisition Trust,
an
illinois
business trust.
6
Respondent is without knowledge or information sufficient to form a belief
as to the
truth
of the
allegations of paragraph 6.
7
Respondent Chicago Dock and Canal
Company
was a corporation
organized and existing under and
by virtue of
a special act
of thelegislature of the State of
Illinois and authorized to
do
business
in
Illinois.
7.
Respondent is without knowledge or information sufficient to form a belief
as to the truth of the allegations of paragraph 7.
8.
Respondent Kerr-McGee Chemical LLC, a Delaware limited liabifity
2
company authorized to do business in illinois, is an affiliate of Kerr-McGee Chemical
CorporatIon, successor of and successor In Interest to Lindsay Light
and Chemical Company
and
Lindsay
Light Company.
8.
Respondent admits that Kerr-McGee Chemical LLC is a Delaware limited
liability company authorized to do business in Illinois and is successor of and successor in interest
to Lindsay Light and Chemical Company and Lindsay Light Company, but Respondent denies that
Kerr-McGee Chemical LLC is an affiliate of Kerr-McGee Chemical Corporation.
AS TO
THE
RV3 NORTh COLUMBUS
DRIVE
SITE
9.
Through a
series
of
administrative orders and amendments, the USEPA
has identIfied land generally located at 316 East
illinois Street, Chicago,
Cook County, Illinois
as the
LIndsay Light
II Site. Lindsay Light fl
is situated in
an urban area
known as
Streeterville, and
is surrounded by commercial
and resIdential buildings.
The Chicago
River
is located approximately ¼mile south, and lake
Michigan
Is about ‘A
mie east of the Lindsay
Light II Site.
9.
Respondent admits the allegations of paragraph 9.
10.
RV3 North Columbus Drive Site (the RV3 Site), the parcel of land
pertinent
to
this citizen suit,
is Identified by the USEPA in an amendment to Its administratIve
orders issued for the
Lindsay
Light II Site. The
RV3
Site is generally located at 200 East
Illinois
Street
In Chicago, Cook County, illinois, and is bounded by North Columbus Drive,
East Grand Avenue, North St. Clair Street, and East Illinois Street.
10.
Respondent
admits
the allegations of paragraph 10.
11.
The
RV3
North Columbus Drive Site is a “site” as that term Is defined
in Section 3.460 oftheAct (415 ILCS 5/3.460).
11.
Respondent denies that the RV3
North
Columbus Drive Site
was
used for
purposes subject to regulation or control by
this
Act or regulations thereunder, and on that basis
Respondent denies the allegations of paragraph 11.
AS TO CONTAMINATION OF THE RV3
SITE
12.
From at least 1915 to 1933, the
Lindsay
Light Company
was
headquartered at 161
East
Grand Avenue,
and
manufactured
Incandescent gaslight
mantles
at 161 East Grand Avenue
and
/ or at 316 East
Illinois Street,
at and adjacent to the Lindsay
Light
II and the
RV3 Sites.
3
12,
Respondent admits the allegations ofparagraph 12, except that Respondent
denies the allegation that Lindsay Light Company was headquartered at 161 East Grand Avenue
“from at least 1915 to 1933.”
13.
The principal Ingredient in gaslight mantle manufacture is thorium.
Thorium occurs principally as the parent radionuclide thorlum-232
in association with Its
daughter products in a decay sequence
known
as the
Thorium
Decay Series. It is believed
that the principal source of contamination at the
RV3 Site is the
Thorium Decay Series.
13.
Respondent denies the allegation of the first sentence of paragraph 13.
Respondent admits the allegation ofthe second sentence ofparagraph 13. Respondent denies that
the Thorium Decay Series presently contaminates the RV3 Site and
on that
basis denies the
allegation
ofthe
third sentence of paragraph 13.
14.
Between at
least
1915
and
1933,
LIndsay Light
Company operated its
incandescent gaslight mantle manufacturingbusiness at the Lindsay Light II
Site, and
arranged forthe disposal of hazardous substances
at theLindsay Light 11 Site,
Including the
RV3. North Columbus Drive parcel, the parcel
pertinent
to
this citizen suit.
14.
Respondent denies the
allegations of paragraph 14.
15.
Chicago
Dock and Canal Company owned the RV3 North Columbus
Drive parcel
of the Lindsay Light Ii Site at the time
hazardous
substances were disposed at
the RV3 Site by
LIndsay
Light Company.
15.
Respondent is
without knowledge or information sufficient to form a belief
as to the truth
of
the allegations of paragraph 15.
AS TO REMEDL&TION OF THE RV3 SITE
16.
Through a
series
of adminIstrative orders, the USEPA ordered Chicago
Dock and Canal Trust and Kerr-McGee Chemical LLC
to remove the
hazardous substances
contamination
at the
Lindsay Light II Site, and in an amendment, ordered River East
LLC,
Kerr-McGee Chemical
LLC
and Grand Pier Center LLC to remove the hazardous substances
contamination at the
RV3 North Columbus Drive Site.
16.
Respondent admits the allegations of
paragraphs
16.
17.
The
remediatlon
work performed at the
RV3
Site was conducted under
the
Unilateral Administrative
Order Docket Number V-W-96-C-353
issued
June 6, 1996
(UAO) and the First
Amendment
to
that
Order dated March 29, 2000. The work
was
4
conducted in accordance
with the Work Plan for Site Radiation Survey
and Excavation Soil
Management dated March 20, 2000 and approved by the USEPA on March 23, 2000.
17.
Respondent admits that an Unilateral Administrative Order Docket Number
V-W-96-C-353 issued June 6, 1996 (UAO), a First Amendment to that Order dated March 29,
2000, and a
Work
Plan for Site Radiation Survey and Excavation Soil Management dated March
20, 2000 and approved by the USEPA on March 23, 2000 exist, but Respondent is without
knowledge or information sufficient to form a belief as to the truth
ofthe
remaining allegations of
paragraph 17, but Respondent acknowledges that USEPA issued a Letter of Completion on August
26, 2002.
18.
Thereafter, the
USEPA required additional work, which was
conducted
In accordance with the Sidewalk Remediation Work Plan dated March 9, 2001 and approved
by USEPA on April 11, 2001.
18.
Respondent admits the USEPA required additional work and that there is a
Sidewalk Remediation Work Plan dated March 9, 2001, which was approved by USEPA on April
11, 2001. Respondent is without knowledge or information sufficient to form a belief as to the
truth
of the
remaining allegations of paragraph 18, but Respondent acknowledges that USEPA
issued a Letter
of Completion on
October 8, 2004.
19.
The First Amendment to the UAO required Grand Pier, River East
LLC, and Kerr-McGee ChemIcal LLC
to perform
certaIn removal actions including,
but not
limited to, the implementation of a Site Health and Safety Plan, the hnplementatlon of an air
monitoring program, the removal
of
contamination, and
the
disposal
of
hazardous
substances.
19.
Respondent admits the allegations of paragraph
19.
20.
Grand Pier Center
LLC, as
the then current owner
of the RV3 Site,
and AISLIC, as subrogee of Grand Pier, performed and
completed work at the
RV3 Site in
accordance with the UAO, the UAO’s First Amendment,
and the Work
Plans.
20.
Respondent admits that Grand Pier Center LLC
owned the RV3 Site.
Respondent is without knowledge or information sufficient
to
form a belief as to
the
truth
ofthe
5
allejation that AISLIC performed or completed work at the RV3 Site. Respondent is without
knowledge or information sufficient to form a belief as to the truth of the allegation that Grand Pier
Center LLC performed and completed work at the RV3 Site in accordance with the UAO, the
UAO’s First Amendment, and the Work Plans, but Respondent acknowledges that USEPA issued
Letters of Completion on August 26, 2002, and on October 8, 2004.
21.
The removal activities under the Work Plan began on April 4, 2000,
and Grand Pier Center LLC has been in compliance with the UAO since the UAOwartssued
to Grand Pier Center LW for the RV3 Site.
21.
Respondent is withoutknowledge or information sufficient to form a belief
as to the truth of the allegations ofparagraph 21.
22.
A final Closure Report for the area bounded by North Columbus Drive,
East Grand Avenue, North St. Clair Street,
and
East illinois Street was prepared by the
Project
Coordinator, STS Consultants, Ltd., and submitted to the USEPA on July 2, 2001.
Thereafter, the Final Closure Report Addendum
dated August 31, 2004 was submitted to
USEPA.
22.
Respondent admits the allegations of paragraph 22.
23.
USEPA issued Letters of Completion on August 26, 2002 and on
October 8, 2004 for the work performed according to the approved Work Plans.
23.
Respondent
admits the allegations of paragraph 23.
24.
GrandPier and AISLIC incurred necessary response
costs of
approximately $2,300,000
at the
RV3
Site, and continue to incur additional costs ofresponse.
24....
Respondent denies that Orand Pier continues.to incur additional costs
of
response. Respondent denies that
AISLIC
continues to incur additional costs
of response.
Respondent is without knowledge
or
information sufficient to form a belief as to the truth
ofthe
remaining allegations
ofparagraph 24.
25.
Respondents
are liable “persons” as that term
is defined by Section
3.315 of the Act (415
ILCS
5/3.315) for
all costs
of
response
at theRV3 Site.
25.
Respondent denies that
it is a
liable personfor costs
of response at the RV3
6
Site, but admits that it is a person, as that term is defmed in Section
3.315
of the Act (415 ILCS
5/3.315).
AS TO COUNT I
-
WASTE DISPOSAL
26.
Complainants incorporate by reference as
if fully restated herein,
paragraphs 1 through
25,
above.
26.
Respondent repeats its answers to paragraphs 1 though 25 above.
27.
Respondent Kerr-McGee is a “generator” as that term is defined by
Section 3.205 of the Act (415 ILCS 5/3.205).
27.
Respondent denies that it is a generator, but admits that “generator” is a
term defined in Section 3.205 of the Act (415 ILCS
5/3.205).
28.
ChIcago Dock and Canal Company owned the parcel ofland comprising
the RV3 North Columbus Drive Site at the time that Lindsay Light Company disposed of
“hazardous substances,” as that term is
defined
In Section 3.215 of the Act (415 UJCS
5/3.215), at the RV3 Site, including but not limited to thorium.
28.
Respondent denies that Lindsay Light Company disposed ofhazardous
substances at the RV3 Site, including but not limited to thorium, but admits that “hazardous
substances” is a term defined in Section 3.215 ofthe Act
(415
ILCS 5/3.215). Respondent is
without knowledge or information sufficient to form a belief as to the truth ofthe remaining
allegations of paragraph 28.
29.
Releases ofhazardous substances at the RV3 Site have resulted In
radioactive thorium contamination requiring Grand Pier and AJSLIC to Incur necessary
response costs to remove the contamination and remedlate the RV3 Site, totaling
approximately $2,300,000 to date.
29.
Respondent denies that any response costs to remove contamination and
remediate the RV3 Site were caused by anything other than GrandPier’s excavationof the Site as
part of its development plan, which it pursued for its own business purposes, and on that basis
Respondent denies the allegations ofparagraph 29, except that Respondent is withoutknowledge or
information sufficient to form a belief as to the truth of the allegation that response costs incurred
7
by Grand Pier and AISLIC, if any, were necessary, and Respondent is without knowledge or
information sufficient to form a belief as to the truth of the allegation that response costs incurred
by Grand Pier and AISLIC, if any, total approximately $2,300,000.
30.
Grand
Pier was an
innocent
purchaser
of the RV3 Site. Grand
Pier Is a
wholly
innocent owner which
had no involvement with the Improper treatment, storage,
disposal or discharge of thorium contaminationat the RV3 Site.
30.
Respondent denies the allegations ofparagraph 30.
31.
The
Act
prohibits the disposal, treatment, storage or abandonment of
any waste in
IllinoIs,
except at a site or facility which meets the requirements of the Act and
of regulations and standards thereunder.
415
ILCS 5/21(e).
31.
Paragraph 31 states a legal conclusion to which no answer is required. To
the extent that an answer is deemed required, Respondent avers that
415
ILCS 5/21(e) speaks for
itself.
32.
Respondents violated the Act when they improperly disposed, treated,
stored and abandoned solid
and
hazardous wastes at the Site, a facility which does not meet
the
requirements
ofthe Act and regulations and
standards thereunder for such disposal,
treatment,
storage
and abandonment of waste.
32.
Respondent denies the allegations of paragraph 32.
33.
As a result of Respondents’ violation of the Act, the Site was
contaminated, resulting in ComplaInants’ incurrence of costs
In the Investigation, removal,
and reportIng activities at the Site.
33.
Respondent denies the allegations of paragraph 33.
34.
Respondents are liable under the Act for
Complainants’ costs Incurred
In the Investigation, removal, and reporting to USEPA of contaminants Respondents failed to
remove from the Site.
34.
Respondent denies the allegations ofparagraph 34.
AS TO
COUNT II- C ontamlnant Threat to
Groundwater
35.
ComplaInants Incorporate
by
reference
as If
fully
restated herein,
paragraphs
1
through
34, above.
35.
Respondent repeats its answers to paragraphs 1 though 34 above.
8
36.
The Act prohibits any person
from causing, threatening, or allowing the
discharge of any contaminant so as to cause or tend to cause water pollution, either alone or
In combination with matter from other sources. 415 LLCS
5/12(a).
36.
Paragraph 36 states a legal conclusion to which no answer is required. To
the extent that an answer is deemed required. Respondent avers that 415 ILCS 5/12(a) speaks for
itself.
37.
Respondents violated the Act when they Improperly handled, treated,
stored and
disposed of solid and hazardous
wastes, thereby causing, threatening, and allowing
the
discharge
of
contaminants, so as to cause
and tend to
cause
water pollution at the Site,
either alone or In combination with matter from other sources.
37.
Respondent denies the allegations ofparagraph 37.
38.
As a result
ofRespondents’ violation of the Act, the Site was
contaminated, resulting in Complainants’ incurrence ofcosts in the
Investigation, removal,
and reporting activItIes
at the Site.
38.
Respondent denies the allegations of paragraph 38.
39.
Respondents are liable under the
Act for Complainants’ costs Incurred
In the Investigation, removal, and reporting
to USEPA of contaminants Respondents failed to
remove from the Site.
39.
Respondent denies the allegations ofparagraph 39.
AS TO COUNT m
-
CONTAMINANTS UPON LAND
40.
ComplaInants incorporate by reference as if fully restated herein,
paragraphs
1
through
39, above.
49,
~espondep~repeathi~
wcc~
t~p~gr~p~~
~
~
41.
The Act prohibits any person from
depositing
any contaminants
upon
the land In such place and
manner so as to create a water pollutIon hazard.
415
ILCS
5/12(d).
41.
Paragraph 41 states a legal conclusion to which no answer is required.
To
the extent that an answer is deemed required, Respondent avers that
415 ILCS 5/12(d) speaks for
itself.
42.
Respondents violated the Act when they improperly handled, treated,
9
stored and disposed of solid and hazardous wastes, thereby depositing contaminants upon the
land at the Site in such place and manner so as to create a water pollution hazard.
42.
Respondent denies the allegations
of paragraph 42.
43.
As a result of Respondents’ vIolation of the Act, the Site was
contaminated, resulting in Complainants’ incurrence of costs in the investigation, removal,
and reporting activitIes at the Site.
43.
Respondent denies the allegations of paragraph 43.
44.
respondents are lIable under the Act for Complainants’ costs incurred
in the Investigation, removal, and reporting to USEPA of contaminants Respondents failed to
remove from the Site.
44.
Respondent denies the allegations of paragraph 44.
Respondent denies each and every allegation of the Complaint not heretofore
specifically admitted.
AS TO
PRAYER
FOR
RELIEF
WHEREFORE,
Complainants demand Judgment In their favor and against the
Respondents, and each
of them:
A.
declaring each Respondent jointly and severally liable and awarding to
Complainants all past costs of
response incurred by Complainants, with interest as provIded
bylaw;
B.
declaring each Respondent jointly and
severally liable and awarding to
Complainants
all future costs
of response, if
any,
to be incurred by Complainants,
with
Interest as provided by law;
C.
mandating and orderingRespondents to abate and remediate
contamInatIon should additional remedlatlon
be reqi~1rSbyidthinistratlve
order
àr
judicial
decree;
D.
awarding to Complainants theIr costs
of litigation,
Including reasonable
attorney
and expert witness
fees; and
E.
ordering such other relief as is appropriate and just.
Respondent denies that Complainants are entitled to the relief that they request.
10
FIRST AFFIRMATIVE
DEFENSE
The Board does not have jurisdiction to award cleanup costs to a private party for
violations of Sections 21(e), 12(a), and 12(d) of the illinois Environmental Protection Act.
SECOND AFFIRMATIVE DEFENSE
Count I of the Complaint fails to state a claim upon which relief can be granted.
THIRD AFFIRMATIVE DEFENSE
Count II of the Complaint fails to state a claim upon which relief can be granted.
FOURTH AFFIRMATIVE DEFENSE
Count ifi of the
Complaint fails to state a claim upon which relief can be granted.
FIFTH AFFIRMATIVE DEFENSE
In the event and to the extent that Respondent is found liable, Complainants’
recovery, if any, should be proportionally reduced because Complainants’ own fault contributed to
theifinjuries, if any, and because they are liable under the Illinois Environmental Protection Act.
SIXTH AFFIRMATIVE DEFENSE
Complainants’ claims are barred, in whole orin part, because of the preceding,
intervening and/or superseding acts of third parties or because of events over which Respondent
had no control.
SEVENTH
AFFIRMATIVE DEFENSE
By
their actions, Complainants knowingly and voluntarily assumed the risk of
incurring any alleged damage they may have suffered and are therefore precluded from recovery.
EIGHTH AFFIRMATIVE DEFENSE
Counts I, LI, and ifi of the Complaint are preempted by tbderal law.
NINTH AFFIRMATIVE DEFENSE
With respect to Counts I, II, and m of the Complaint, Respondent is entitled to
11
contribution protection under 42 U.S.C. § 9613(0(2).
TENTHAI~F’IRMATIVEDEFENSE
In the event and to the extent that Respondent is found liable in this action, the
amount ofany recovery by Complainants should be reduced because Respondent is entitled to
receive a credit, offset,• setoff and/or recoupment for all costs that Kerr-McGee Chemical LLC has
incurred, or has agreed to incur, and all services or benefits it has provided, or has agreed to
provide, that have caused or will cause an increase in the value of Complainants’ properties.
PRAYER FOR RELIEF
WHEREFORE, Respondent respectfully requests that the Board enterjudgment:
A.
Dismissing Complainants’ claims with prejudice; and
B.
Granting such other relief as the Board may deem just and proper.
12
Respectfully submitted,
~~1c1Ichael P. Conndy
Garrett C. Carter
Connelly Roberts & McGivney LLC
One North Franidin Street
Suite 1200
Chicago, Illinois 60606
(312)251-9600
Peter I. Nickles
J.T.
Smith II
Thomas E. Hogan
COVINGTON & BURLING
1201 Pennsylvania Ave., N.W.
Washington,
D.C.
20044-7566
(202) 662-6000
Attorneys for Respondent
Kerr-McGee Chemical LLC
Dated: June 13, 2005
13
CERTIFICATE OF SERVICE
I, Lynne Pudlo, a non-attorney, being first sworn on oath, depose and state that I
served the attached Answer ofKerr-McGee Chemical LLC on the attorneys of record by
mailing true and correct copies in a properly addressed, sealed envelope with appropriate
postage affixed and depositing same in the U.S. mail located at One North Franklin
Street, Chicago, Illinois, before 5:00 p.m. on June 13, 2005.
Subscribed and sworn to
before me June 13, 2005.
~ts
NotaryPublic
~ MICHELLE M. PA1TERSON
1
INOTARY PUBLIC STATE OF ILLiNOIS
o~a2oo8
l:241O\O4O~pIeadIngs\cosO4O4OS
RECEIVED
POLLUTIONBEFORE CONTROLTHE
ILLINOISBOARD
CLERK’S
JUN 13
OFFICE
2O~
GRAND PIER CENTER
LLC
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE
CO.
as subrogee of
GRAM) PIER CENTER LLC
)
Complainants,
)
PCB
05-157
V.
)
(Citizens
Enforcement
-
Land)
)
RIVER
EAST
LLC
CHICAGO
DOCK
AND CANAL
TRUST
CHiCAGO DOCK
AND CANAL COMPANY
)
KERR-McGEE CHEMICAL
LLC
)
Respondents.
)
COUNTER-COMPLAINT
Kerr-McGee Chemical LLC (Kerr-McGee) counterclaims against Grand Pier
Center LLC (Grand Pier) and American International Specialty Lines Insurance Co. (AISLI), as
subrogee ofGrand Pier (Counter-Complaint Respondents), averring as follows:
I.
To the extent that the Board has jurisdiction over the Complaint, the Board
hasjurisdiction over this Counter-Complaint pursuant to 35 IAC 103.200 and Sections
5(d),
31(d)
and 33(a) of the Act.
2.
In 1997, Grand Pier acquired property in Chicago, Cook County, Illinois
boudded by North Columbus Drive, East Grand Avenue, North St. Clair Street and East illinois
Street, which property, at time of acquisition by Grand Pier, was paved and in use as a parking lot.
This site is generally denoted by the address 200 East illinois Street.
3.
Before acquiring this property, Grand Pier retained one or more
environmental consultants to conduct environmental reviews that included the 200 East illinois
Street site.
t~lT
u—i
4.
This environmental review process indicated that a site immediately to the
east of 200 East Illinois Street and on the other side of North Columbus Drive at 316 East Illinois
Street was undergoing cleanup pursuant to a 1996 unilateral administrative order (UAO) issued by
the U.S. Environmental Protection Agency, pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§
9601
et. seq.,
to address
contamination by thorium resulting from the historical operations of the Lindsay Light Co. in this
area of Chicago.
5.
In April 1999, Grand Pier’s environmental consultant offered to conduct a
file review to investigate the nature of the environmental concern for an additional cost. Neither
Grand Pier nor any consultant to Grand Pier conducted a file search at the EPA to learn the
particulars ofthe then-ongoing cleanup activities.
6.
Grand Pier knew or should have known that, until construction of North
Columbus Drive in the mid-1980s, the properties at 316 East Illinois Street and 200 East Illinois
Street were contiguous. Moreover, a file search at the EPA of the then-ongoing cleanup would
have, revealed that characterization of the contamination pertaining to the 316 East illinois Street
site indicated that pockets of thorium residues extended beyond the Western property boundary
beneath sidewalks and North Columbus Drive.
7.
Although Grand Pier and/or its consultants and contractors, conducted
subsurface borings at the 200 East Illinois Street site, none was addressed to the possibility of
thorium residues despite the fact that Grand Pier knew orshould have know of the presence of
thorium residues and/or the possibility of the presence of thorium residues.
8.
Ray M. Chin, the principal behind Grand Pier and a trained engineer,
previously worked for Commonwealth Edison and was involved with one or more nuclear power
2
generating stations, where he obtained familiarity with radionuclides and the potential human health
risks associated with them. Ray M. Chin knew or should have known of the presence of thorium
residues at the 200 East Illinois Street site.
9.
At the time Grand Pier acquired the property at 200 East Illinois Street site,
it knew or should have known of the presence of thorium residues at the site.
10.
The pavement covering the 200 East Illinois Street site acted as a shield to
prevent human exposure to the “gamma radiation” associated with thorium residues. In a
September 1999 Enforcement Confidential Addendum regarding paved areas adjacent to the
Lindsay Light II Site, EPA determined that the radioactive material in the soils was not water
soluble and thus did not present a water contamination risk and that the shielding effects of the
asphalt, concrete, and overburden prevent the release ofthe radiation to humans or the
environment. EPA also determined in the September 1999 Enforcement Confidential Addendum
that the radioactive materials would be released to the environment if the shielding materials were
disturbed or if a person tunneled into the radioactive materials. The September 1999 Enforcement
Confidential Addendum pertains to the Action Memorandum accompanying an Administrative
Order on Consent regarding the Lindsay Light IISite.
11.
In January 2000, Grand Pier began to remove the pavement on the surface
ofthe 200 East Illinois Street site, to excavate the site, and to dispose ofthat material at the
Beverly Gravel Site, a quarry in Elgin, Illinois. Grand Pier undertook these actions to prepare for
construction of a commercial building despite the fact that Grand Pier knew or should have known
that its actions would cause a risk to human health and the environment from exposure to gamma
radiation.
3
12.
Only by Grand Pier’s removal ofthe pavement and excavation of the site
for construction ofa commercial development, was the public and the environmentexposed to the
risks of thorium. Grand Pier undertook the removal of the pavement and excavation of the site for
its own economic benefit. Kerr-McGee did not stand to benefit economically from Grand Pier’s
commercial development activities.
13.
In February 2000, EPA directed cessation ofthese excavation activities
pending a survey to determine whether the excavation would expose thorium residues. After a
survey by EPA personijel indicated the presence of thorium residues, EPA amended a 1996
unilateral administrative order with respect to the 316 East Illinois Street site to direct thorium
removal activities at the 200 East Illinois Street site by Grand Pier, EPA also directed the removal
of the thorium residues that Grand Pier had disposedof at the Beverly Gravel Site.
14.
In March 2000, Kerr-McGee and Grand Pier reached an agreement by
which both parties reserved all rights to seek future reimbursement, but, to enable prompt conduct
ofremoval activities directed by EPA, Kerr-McGee undertook to arrange transportation and
disposal of thorium residues to be excavated by Grand Pier’s contractor at the 200 East Illinois
Street site.
15.
As a result of Grand Pier’s actions, Kerr-McGee has incurred approximately
$3.6 million of costs.
16.
Pursuant to a consent decree under
§
107 of CERCLA, 96 U.S.C.
§
9607,
entered in the United States District Court for the Northern District of minois in June 2004, Kerr-
McGee has reimbursed EPA approximately $130,000 for its costs of oversight and response with
respect to the 200 East Illinois Street site.
.4
17.
Grand Pier has not paid any share of these EPA costs or reimbursed Kerr-
Mcqee for any of the costs incurred by Kerr-McGee.
COUNTER-COMPLAINT COUNT I: 415 ILCS 5/21(e)
18.
Kerr-McGee repeats and realleges the allegations ofparagraphs of 1-17 of
its Counter-Complaint as if fully set forth herein.
19.
The Act provides that no personshall dispose, treat, store or abandon any
waste, or transport any waste into this State for disposal, treatment, storage or abandonment,
except at a site or facility which meets the requirements of the Act and of regulations and standards
thereunder, 415 ILCS 5/21(e).
20.
Grand Pier’s removal of asphalt, concrete, and overburden at the 200 East
Illinois Street site, the excavation of the site, and the subsequent disposal of that material were acts
of “disposal,” as that term is defined in 415 ILCS
5/3.185,
other than at a site or facility which
meets the requirements.of the Act and ofregulations and standards thereunder.
PRAYER FOR RELIEF
WHEREFORE, Kerr-McGee prays for judgment against Grand Pier and AISLI as
follows:
A.
An order requiring Counter-Complaint Respondents to reimburse Kerr-
McGee for the $3.6 million in response costs that Kerr-McGee has Incurred and the $130,000
Kerr-McGee reimbursed to the United States related to removal of thorium at the 200 East Illinois
Street site, together with maximum lawfully allowed interest thereon;
B.
An order requiring Counter-Complaint Respondents to pay the maximum
civil penalties provided for by the Act;
C.
Such other and further relief as the Board may deem just and proper.
5
