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’ RESPONSE TO KERR-McGEE CHEMICAL LLC’S
MOTION TO DISMISS COMPLAINANTS’ COUNTER-COMPLAINT AND TO
STRIKE COMPLAINANTS’ AFFIRMATIVE DEFENSES
Complainants Grand Pier LLC and American International Specialty Lines
Insurance Co. (collectively “Grand Pier”), submit this response to Kerr-McGee’s motion
to dismiss Complainants’ Counterclaim and to strike Complainants’ Affirmative
Defenses.
I.
Complainants Have Alleged Specific Facts to Support Asserted Affirmative
Defenses Two Through Nine
Complainants agree with Kerr-McGee’s contention that the facts establishing an
affirmative defense must be pled with the same degree of specificity required by a
plaintiff to establish a cause of action.
International Ins. Co. v. Sargent & Lundy
, 242
Ill.App.3d 614, 609 N.E.2d 842, 853 (1
st
Dist. 1993). However, contrary to Kerr-
McGee’s motion arguments, Complainants have satisfied this standard. Kerr-McGee
fails to consider that Complainants have explicitly and specifically incorporated, in
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support of the asserted affirmative defenses, the averments contained in their Complaint
against Defendants including Kerr-McGee.
See
Counterclaim at 7.
Facts supporting affirmative defenses two through six include the following: In
paragraphs 16, 17, and 19 of the Complaint, Grand Pier specifically alleges that Kerr-
McGee performed removal actions at the Lindsay Light II and RV3 Sites in accord with
USEPA administrative orders. By acquiescing in USEPA’s orders to remove and dispose
of soil, and not seeking reimbursement from USEPA for its costs, Kerr-McGee
effectively conceded that the thorium contamination was generated by its corporate
predecessor, Lindsay Light Company. These facts are indicative, and support the
affirmative defense of, acting as a volunteer, assumption of the risk, waiver, unclean
hands, and negligence. By addressing the contamination at the Lindsay Light II and RV3
sites, Kerr-McGee only belatedly stepped-up to a problem of its predecessors’ making,
and should not now b heard to complain against others, including Grand Pier..
Accordingly, the Board should deny Kerr-McGee’s motion to dismiss affirmative
defenses two through six.
Facts supporting affirmative defense seven include the following: In paragraph
30 of the Complaint, Grand Pier specifically alleges that it was an innocent purchaser of
the RV3 Site. Grand Pier further alleges that it had no involvement with the improper
treatment, storage, disposal or discharge of thorium contamination at the RV3 Site.
These facts clearly support Grand Pier’s affirmative defense that the acts or omissions of
Grand Pier are not the proximate cause of any alleged environmental contamination and
resultant damages complained of by Kerr-McGee in its Counter-Complaint. The Board
should deny the motion to dismiss affirmative defense seven.
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Facts supporting affirmative defense eight include the following: In paragraph 15
of the Complaint, Grand Pier specifically alleges that Chicago Dock and Canal Company
owned the RV3 Site at the time hazardous substances were disposed at the Site; in
paragraph 6 of the Complaint, Grand Pier specifically alleges that Chicago Dock and
Canal Trust is the successor of and successor in interest to Chicago Dock and Canal
Company; in paragraph 5 of the Complaint, Grand Pier specifically alleges that River
East LLC is the successor of and successor in interest to Chicago Dock and Canal
Company. These allegations regarding the prior owner of the site and its successors in
interest support Grand Pier’s eighth affirmative defense that the injuries, damages or
conditions complained of by Kerr-McGee were caused by the acts or omissions of third
parties not under the control of Grand Pier. Thus, Kerr-McGee’s motion to dismiss the
eighth affirmative defense should be denied.
Facts supporting affirmative defense nine include the following: In paragraphs 9
and 16 of the Complaint, Grand Pier alleges that Kerr-McGee acted in response to a
series of administrative orders regarding remediation of the thorium contamination at the
Lindsay Light II Site, which is adjacent to the RV3 Site. These administrative orders
date back to at least 1996. Consequently, Kerr-McGee was intimately aware of the
thorium contamination, was responding to the contamination at adjacent properties, but
failed to mitigate future damages incurred by Grand Pier by failing to advise Grand Pier
of the contamination prior to Grand Pier’s commencement of construction activities.
Kerr-McGee had the ability to take affirmative steps to avoid the unnecessary costs
Grand Pier subsequently incurred due to historic contamination caused by Kerr-McGee’s
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predecessors. Consequently, the facts alleged in the Complaint adequately support Grand
Pier’s ninth affirmative defense of failure to mitigate its damages.
II.
Complainants’ Counterclaim to Kerr-McGee’s Counter-Complaint Is Not
Duplicative of Complainants’ Complaint
Kerr-McGee claims that the allegations raised in Complainants’ Counterclaim are
the same as those raised in Complainants’ Complaint. This contention is inaccurate. The
Complaint seeks remuneration for monies expended by Grand Pier during the
remediation of the RV3 Site according to the Environmental Protection Act. Grand Pier
estimates these monies to be around $2.3 Million. Kerr-McGee’s Counter-Complaint
pertains to monies expended by Kerr-McGee during the remediation of the RV3 Site.
Kerr-McGee estimates those monies to be around $3.5 Million.
Grand Pier’s
Counterclaim, brought pursuant to the Contribution Act rather than the Environmental
Protection Act, seeks an allocation of liability of Kerr-McGee’s asserted $3.5 Million in
damages, should the Board determine that Grand Pier is liable to Kerr-McGee according
to the Counter-Complaint. Although all allegations in this case relate to the RV3 Site and
monies expended during remediation, the Complaint relates to Grand Pier’s damages, and
the Counter-Complaint relates to Kerr-McGee’s purported damages (albeit for cleaning
up its own mess). Consequently, it cannot be concluded that the Complaint and the
Counterclaim to Kerr-McGee’s Counter-Complaint are duplicative.
Lastly, should the Board determine that Grand Pier did not comply with Board
rules regarding moving for leave to file a Counterclaim (also known as a counter-
complaint under Board parlance) to Kerr-McGee’s Counter-Complaint, Grand Pier now
seeks leave to file its counterclaim/counter-complaint. Kerr-McGee will not incur
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prejudice should the Board now grant Grand Pier leave to file its responsive pleading to
Kerr-McGee’s Counter-Complaint. Kerr-McGee certainly has notice of the claims and
Grand Pier would not object to the Board granting Kerr-McGee additional time to answer
the allegations of Grand Pier’s counterclaim/counter-complaint to Kerr-McGee’s
Counter-Complaint, should the Board deem additional time necessary. Grand Pier
requests the Board to exercise its discretion to allow Grand Pier’s counterclaim/counter-
complaint to stand, to avoid unnecessary repetitive filings.
WHEREFORE, Grand Pier requests that this Board deny Kerr-McGee’s motion
to dismiss affirmative defenses. In the alternative, should the Board conclude that any of
Grand Pier’s affirmative defenses are subject to being stricken, Grand Pier requests leave
to file amended affirmative defenses(s), within 10 days of the Board’s order ruling upon
Kerr-McGee’s motion. Grand Pier also requests that this Board deny Kerr-McGee’s
motion to strike Grand Pier’s counterclaim/counter-complaint, and to order any further
relief this Board deems necessary.
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.
55 E. Monroe St.
Suite 4100
Chicago, IL 60603
(312) 372-0770
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CERTIFICATE OF SERVICE
I, an attorney, state that I have served on the date of October 4, 2005, the attached
Response to Kerr-McGee Chemical LLC’s Motion to Dismiss Complainants’ Counter-
Complaint and to Strike Complainants’ Affirmative Defenses, by U.S. mail, upon the
following persons:
Attorney for River East LLC and
Chicago Dock and Canal Trust
Donald J. Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601-3242
Attorney for Kerr-McGee Chemical LLC
John T. Smith II
COVINGTON & BURLING
1201 Pennsylvania Avenue N.W.
Washington, D.C. 20004-2401
Michael P. Connelly
Garrett C. Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
Illinois Pollution Control Board Hearing Officer
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
__s/ Garrett L. Boehm, Jr.
Garrett L. Boehm, Jr.
JOHNSON & BELL, LTD.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 4, 2005
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