RECEIVED
BEFORE THE ILLINOIS
CLERK’S OFFICE
POLLUTION CONTROL BOARD
MAY
052005
GRAND PIER CENTER LLC
)
STATE
OF
ILLINOIS
AMERICAN INTERNATIONAL
)
PoIIut~on
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
Daniel C. Murray
Pedersen & Houpt
Garrett L.
Boehm, Jr.
161 North Clark Street
JOHNSON & BELL, LTD.
Suite 3100
55 East Monroe Street
Chicago, IL 60601-3242
Suite 4100
Chicago, IL
60603-5803
NOTICE OF FILING
PLEASE TAKE NOTICE that on May
5,
2005,
we caused to
be filed with the Illinois
Pollution Control Board in the James R. Thompson Center, Chicago, Illinois,
Kerr-McGee
Chemical LLC’s
MOTION FOR
LEAVE
TO
FILE A REPLY IN
SUPPORT OF ITS
MOTION TO DISMISS THE
COMPLAINT and MEMORANDUM IN
SUPPORT OF ITS
MOTION TO
DISMISS THE
COMPLAINT, copies of which are serwd upon you along with
this notice.
Kerr-McGee Chemical LLC
~~ofitsafto~~
Michael P. Connelly
Garrett C. Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
Tele: (312) 251.9600
I:\2470\040\Notice ofFiling 050505
CERTIFICATE OF SERVICE
I, Lynne Pudlo, 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 May
5,
2005.
Subscribed and sworn to
before me May
5,
2005.
OFFICIAL
SEAL’
____________
iM~I~J
Notary Pu1~ic
I:\2470\040\pleadings\cos040405
RECEW~=D
BEFORE
THE
ILLINOIS
CLERK’S
OFRCE
POLLUTION
CONTROL BOARD
MAY
052005
GRAND PIER CENTER
LLC
)
AMERICAN INTERNATIONAL
Pollution
Control
Bd
SPECIALTY LINES INSURANCE CO.
)
as subrogee of
GRAND PIER
CENTER LLC
)
)
Complainants,
)
)
PCIB 05-157
v.
)
(Enforcement)
)
RIVER
EAST LLC
)
CHICAGO DOCK AND CANAL TRUST
)
CHICAGO DOCK AND
CANAL COMPANY
)
KERR-McGEE CHEMICAL LLC
)
)
Respondents.
)
KERR-McGEE CHEMICAL
LLC’S REPLY
MEMORANDUM IN
SUPPORT OF ITS
MOTION TO DISMISS
THE
COMPLAINT
Respondent, Kerr-McGee Chemical LLC
(“Kerr-McGee”), respectfully submits
this reply
memorandum in support of its April 4,
2005 Motion to Dismiss the Complaint brought by Grand
Pier Center LLC and American International Specialty Lines Insurance Co.
as subrogee of Grand
Pier Center LLC (collectively,
“Grand Pier”).
Grand Pier concedes that its pending action before the United States District Court for the
Northern District of Illinois and its action before the Board
“arise out of the same operative facts”
and seek recovery of the same response costs.
Complainants’ Memorandum in Opposition,
at 2.
Grand Pier’s lone argument that its twin-complaints are not
substantially similar is that its
“Complaint before the Board exclusively seeks relief according to Illinois Environmental
Protection Act,
sections
12(a),
12(d) and 21(e).”
Id.
However, Grand Pier’s pending action in
federal court also alleges that Kerr-McGee is liable to
Grand Pier because of Kerr-McGee’s alleged
violations of Sections
12(a),
12(d), and 21(e) of Illinois Environmental Protection Act (the “Act”).
Indeed, Grand Pier’s Second
Amended Complaint is explicit
in this regard:
66.
Defendants,
each of them,
are potentially liable under
Illinois Environmental Protection Act
(415
ILCS
5/1)
for improper
disposal,
treatment,
storage and abandonment of waste
(415
ILCS
5/21(e));
open dumping of waste,
and discharge ofcontaminants so
as to cause or tend to cause water pollution (415
ILCS
5/12(a)),
and
disposal ofcontaminants upon land so as to create a water pollution
hazard.
415
ILCS
5/12(d).
Second Amended Complaint
¶
66.1
Grand Pier’s complaint before the district court alleges violations ofboth federal law and
the
Illinois Environmental Protection Act.
This fact readily
distinguishes the instant case from
those cited by
Grand Pier
in its effort to persuade the Board that
its petition is not duplicative.
In
Dayton Hudson Corp.
v.
Cardinal Industries,
Inc.,
PCB 97-134 (Aug.
21,
1997), the
federal
complaint alleged only violations of the federal Comprehensive Environmental Response,
Compensation,
and Liability Act,
42 U.S.C.
§
9601
et seq. (“CERCLA”).
Similarly,
in Lake
County Forest Preserve District v.
Ostro, PCB
92-80 (July 30,
1992), the federal complaint alleged
only violations of law other than the Act.
Moreover, in
that case the complainant asked
this Board
to impose civil penalties under the Act,
a form of relief that Grand Pier does not seek.
Indeed,
Grand Pier seeks essentially the same remedy from both this Board and the United
States District
Court,
i.e., an award of costs incurred, in cooperation with Kerr-McGee,
complying with a
unilateral order of the United Environmental Protection Agency.
This order determined that Grand
Pier,
as well as Kerr-McGee, is responsible for cleanup of thorium residues at Grand Pier’s
property.
Accordingly, the
Board should dismiss
Grand Pier’s complaint as duplicative.
If it does
1
In light of Grand Pier’s complaint
in federal court seeking cost recovery from Kerr-McGee
for violations of the Act,
the Board should give no weight to Grand Pier’s assertion that “seeking
relief under
the Act in federal court would have been pointless.”
Complainants’
Memorandum in
Opposition, at 2.
2
not,
and it were to
accept Grand Pier’s theory of the merits,
it may open itself to
a wide array of
new private-party petitions seeking overlapping relief on matters expressly and comprehensively
addressed by
CERCLA.2
In any event,
the facts of the
present case make it
especially unsuitable
for the expansion of the Board’s jurisdiction effectively sought by the
complainants.
Grand Pier concedes that the contamination at issue in this
case occurred over 70 years
ago,
decades before the
enactment ofthe Act.
Grand Pier nonetheless argues that its
costs
were
incurred “subsequent
to the enactment of the Act,”
and that it is not seeking retroactive application
of the Act.
Complainants’ Memorandum in Opposition,
at
5.
However, the relevant consideration
is when the
alleged violations
occurred.
See Lake County Forest Preserve
District v.
Ostro, PCB
92-80, at 2
(July 30,
1992) (“Although
the complaint may fail to prove that all ofthe
alleged
violations
occurred after the effective date of the respective provisions,
this is no reason to strike
the complaint at the outset.”) (Emphasis added.)
In that regard, it is undisputed that the only acts
that Grand Pier alleges in its complaint predate
the Act by several decades.
Indeed, the alleged
acts are so remote in time that Grand Pier is unable to plead its allegations respecting those acts
with the precision required by the Board.
~
2222 Elston LLC v.
Purex Indus., Inc.,
PCB 03-55
(June
19,
2003) (“The Board’s procedural rules codify the
requirements for the contents of a
complaint,
including the
‘dates, location,
events, nature, extent, duration, and strength of
discharges or emissions and consequences alleged to constitute violations
.
.
.
.“)
(quoting 35
Iii.
2
Kerr-McGee recognizes that the Board has previously determined that it has the authority to
award environmental response costs to private party claimants.
A significant number of the
matters in which the Board has done so involve leaking underground petroleum storage tanks.
~,
~
Chrysler Realty Corp.
v.
Thomas Industries, Inc.,
PCB
0 1-25 (Dec.
7,
2000);
Richey
v.
Texaco Refining and Marketing, Inc., PCB 97-148 (Aug.
7,
1997);
Streit
v.
Oberweis Dairy, Inc.,
PCB 95-122 (Sept.
7,
1995); Herrin Security Bank v.
Shell
Oil Co., PCB 94-178 (Sept.
1,
1994).
CERCLA does not cover cleanup of petroleum products,
and these precedents do not suggest the
overlap offederal
and state remedies urged here by petitioner.
3
Adm.
Code
103.204(c)).
An award of response costs by the Board under the circumstances of this case,
in
which
Grand Pier seeks to recover the
same costs in
substantially similar
actions before two tribunals
for
acts
Occurring decades before the enactment of the Act,
would go beyond
the outer limits of the
Board’s jurisdiction.
In the Board’s initial decision determining that it had
the authority to
order
reimbursement of cleanup costs,
Lake County
Forest Preserve District
v.
Ostro,
PCB 92-80
(March 31,
1994), the Board
relied upon the decision of the Illinois Supreme Court
in People v.
Fiorini,
143 Ill. 2d 318
(1991).
There, the court determined that
“it would not hold that such an
award
would not be an available remedy for a violation ofthe Act
under appropriatefacts.”
People v.
Fiorini,
143
Ill.2d at 350 (emphasis added).
In the present case, there is a federal,
but not a state enforcement action.
There
is a
pending federal lawsuit for recovery ofresponse costs under CERCLA.
The
costs in question have
been incurred to clean up
contamination occurring under unknown circumstances more than 70
years ago.
Kerr-McGee urges the Board to
recognize that this case does not present “appropriate
facts” for the exercise of the Board’s jurisdiction under the Illinois Environmental Protection Act.
4
Dated:
May
5,
2005
Respectfully submitted,
Kerr-McGee Chemical LLC
By:
~
~~ö~rie
of its att21~y~
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
Kerr-McGee Chemical LLC
5
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS
r
POLLUTION
CONTROL BOARD
MAY
0 ~
20.
STATE OF ILLINOIS
GRAND PIER CENTER LLC
)
pollution Control Board
AMERICAN INTERNATIONAL
)
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.
)
KERR-McGEE
CHEMICAL LLC’S MOTION FOR LEAVE
TO
FILE
A REPLY IN
SUPPORT
OF ITS
MOTION TO DISMISS
THE
COMPLAINT
Respondent, Kerr-McGee Chemical LLC
(“Kerr-McGee”), respectfully asks the Illinois
Pollution Control Board
(“the Board”)
for permission to
reply to the response filed by
Grand Pier
Center LLC and
American International Specialty Lines Insurance Co.
as subrogee of Grand Pier
Center LLC (collectively,
“Grand Pier”).
The Board’s procedural rules
allow the
filing of a reply
to a response if it is to prevent material prejudice.
See
35 II!. Adm.
Code
101.500(e).
Grand Pier, jointly
with Kerr-McGee
and the other respondents in this pending action, has
been identified by the United States Environmental Protection Agency as a
“responsible party” for
cleanup of thorium residues discovered during construction for commercial development by
Grand
Pier in the Streeterville District of the City of Chicago.
Grand Pier
and Kerr-McGee have
cooperated in removing these thorium residues pursuant to a unilateral administrative order issued
by U.S.
EPA pursuant to the
Comprehensive Environmental
Response, Compensation,
and
Liability
Act,
and this “removal
action” is now complete.
Grand Pier has brought an
action in the
United States District Court for the Northern District ofIllinois against Kerr-McGee seeking
recovery of the costs Grand Pier allegedly incurred carrying out U.S. EPA’s order.
Simultaneously, it has brought a parallel complaint before the Board.
Accordingly, pursuant to
the
statute and rules
governing this
Board’s proceedings, Kerr-McGee has moved to dismiss
Grand
Pier’s complaint
on grounds that it is
“duplicative” and
“frivolous.”
35 Ill.
Adm.
Code 101.202.
In its opposition to
Kerr-McGee’s motion,
Grand Pier has sought to persuade the Board
that
its complaint is not duplicative of its federal suit and that it is asking for a form of relief
routinely granted by the Board.
In fact, for the reasons pointed out in the attached reply, Grand
Pier has mischaracterized purported
distinctions between its action before this Board and that
pending in the Northern District,
and it has misinterpreted Board precedent addressing award of
clean up costs to private parties.
The attached reply
should assist the Board in obtaining an understanding of the relationship
between the parallel and overlapping proceedings initiated by Grand Pier and,
in
so doing,
help
avert material prejudice to
Kerr-McGee.
2
Dated:
May
5,
2005
Respectfully
submitted,
Kerr-McGee Chemical LLC
By:
~
of its atto~~yi
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
Kerr-McGee Chemical LLC
3
