POLLUTION CONTROL BOAJ?D

)

)

)

)

)

RECEIVED

CLERK’S OFFICE

FEB 25

2005

STATE OF

Pollution Control Board

Complainants

V.

RIVER EASTLLC

CHICAGO DOCK AND CANAL

TRUST

CHICAGO DOCKAND CANAL

COMPANY

KERR-MCGEE CHEMICAL LLC

)

)

)

)

)

)

GRAND PIER CENTER LLC

AMERICAN INTERNATIONAL

SPECIALTY LINES INSURANCE

CO.

as subrogee of Grand Pier Center LLC

)

~~ç1

)

PC’BO~

)

NOTICE

OF FILING

To:

Donald J. Moran

John T.

Smith II

PEDERSEN & HOUPT

COVINGTON & BURLFNG

161

North Clark Street, Suite 3100

1201

Pennsylvania Avenue. N.W.

Chicago, IL 60601-3242

Washington, D.C. 20004-2401

PLEASE

TAKE

NOTICE that

I have

today filed

with

the

Office of the

Clerk

of the

Illinois

Pollution

Control

Board

(Board)

the

COMPLAINT

of Grand

Pier

Center

LLC

and

American

International

Specialty Lines Insurance Co.,

as subrogee ofGrand Pier Center LLC, a

copy of which

is

herewith

served

upon

you

along

with

this

notice.

You may

be

required

to

attend a hearing on a date set by the Board.

Dated: February

25,

2005

Frederick S. Mueller

Daniel

C.

MulTay

Garrett L.

Boehm, Jr.

JOHNSON

&

BELL,

LTD.

55

East Monroe Street,

Suite

4100

Chicago, Illinois

60603-5803

Tel. (312) 372-0770

Attorneysfor Grand Pier Center LLC and

American International Specialty Lines Insurance

Co.,

As subrogee of Grand Pier Center LLC

Doc.

No. 1188179

---

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS

FEB

252005

POLLUTION CONTROL BOARD

STATE OF ILLINOIS

GRAND PIER CENTER LLC

)

Pollution

Control Board

AMERICANINTERNATIONAL

)

SPECIALTY LINES INSURANCE CO.

)

as subrogee of

Grand Pier Center LLC

)

)

Complainants

)

v.

)

PCB___

)

(Enforcement)

RIVER EASTLLC

)

CHICAGO DOCK AND CANAL

TRUST

)

CHICAGO DOCKAND

CANAL

COMPANY

)

KERR-MCGEE CHEMICAL LLC

)

)

Respondents

COMPLAINT

Complainants

Grand

Pier

Center

LLC

and

American

International

Specialty

Lines

Insurance Co.,

as subrogee of Grand Pier Center LLC, by their attorneys

JOHNsoN

&

BELL, LTD.,

for their Complaint

against the Respondents

River East

LLC;

Chicago Dock

and

Canal Trust;

Chicago Dock and

Canal Company, and Kerr-McGee Chemical LLC, aver as follows:

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

with

respect

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

(USEPA)

as the

RV3 North

Columbus

Drive

Site

(the RV3

Site) in

Chicago, Illinois.

---

2.

For

each

of

Complainants’

claims,

the

Illinois

Pollution

Control

Board

has

jurisdiction

and

authority

to

declare

and

enter judgment of the rights

and

responsibilities of the

parties

to

this citizen suit pursuant

to

35

IAC

103.200

and

Sections

5(d),

3 1(d) and

33(a) of the

Act.

3.

Complainant

Grand Pier

Center LLC (Grand Pier)

is

an

Illinois

limited

liability

company,

with

its

principal

office

in

Chicago,

Illinois.

Grand

Pier

was

issued

a

policy

of

insurance by American International Specialty Lines Insurance Co.

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.

5.

Respondei~itRiver

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

to

Respondents Chicago Dock and

Canal Trust,

and Chicago Dock and

Canal Company.

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 CityFront Acquisition Trust,

an Illinois business trust.

7.

Respondent Chicago Dock and

Canal Company was

a

corporation organized

and

existing

under

and

by

virtue

of a

special

act

of the

legislature

of the

State

of Illinois

and

authorized to

do business in Illinois.

2

---

8.

Respondent Kerr-McGee

Chemical

LLC,

a

Delaware

limited

liability

company

authorized

to

do

business

in

Illinois,

is

an

affiliate

of Kerr-McGee

Chemical

Corporation,

uccessor ofand

successor in interest to

Lindsay Light and

Chemical Company

and Lindsay Light

Company.

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 II is

situated in

an urban area known as Streeterville,

and is

surrounded

by

commercial

and

residential

buildings.

The

Chicago

River

is

located

approximately

¼

mile

south,

and

Lake

Michigan is

about

‘/2

mile

east

of the Lindsay

Light

II

Site.

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.

11.

The RV3 North Columbus

Drive

Site is

a “site”

as that term is defined in

Section

3.460 of the Act (415 ILCS

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

---

13.

The

principal

ingredient

in

gaslight

mantle

manufacture

is

thorium.

Thorium

occurs

principally

as

the

parent

radionuclide

thorium-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.

14.

Between

at

least

1915

and

1933,

Lindsay

Light

Company

operated

its

incandescent gaslight mantle manufacturing business at the Lindsay

Light

II Site,

and

arranged

for the disposal of hazardous substances

at the Lindsay

Light

II Site,

including the

RV3

North

Columbus Drive pardel, the parcel pertinent to

this citizen suit.

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.

RemediatiOn 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.

17.

The

remediation

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

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.

4

---

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.

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

implementation

of

an

air

monitoring

program, the removal of contamination, and the disposal of hazardous substances.

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.

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 UAO was issued to

Grand Pier

Center LLC for the RV3

Site.

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.

23.

USEPA issued Letters ofCompletion

on August 26,

2002 and on

October 8, 2004

for the work performed according to the approved Work Plans.

24.

Grand

Pier

and

AISLIC

incurred

necessary

response

costs

of

approximately

$2,300,000 at the RV3 Site,

and

continue to incur additional costs ofresponse.

25.

Respondents

are liable “persons”

as that tern~

is

defined by Section

3.3 15

of the

Act (415 ILCS

5/3.315)

for all costs of response at the RV3

Site.

5

---

Count I

—

Waste Disposal

26.

Complainants

incorporate

by

reference

as if fully

restated

herein,

paragraphs

1

through

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).

28.

Chicago Dock and Canal Company owned the parcel of land 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 ILCS

5/3.215),

at the RV3

Site, including but not limited

to thorium.

29.

Releases of hazardous

substances

at

the

RV3

Site have

resulted

in

radioactive

thorium

contamination requiring

Grand Pier

and

AISLIC

to

incur necessary response costs

to

remove

the contamination

and

remediate

the

RV3

Site,

totaling

approximately

$2,300,000

to

date.

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 contamination at the RV3

Site.

31.

The Act prohibits the disposal,

treatment,

storage or abandonment ofany 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).

6

---

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 of the Act

and

regulations

and

standards thereunder

for

such disposal,

treatment,

storage and abandonment of waste.

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.

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.

Count II

—

Contaminant Threat to Groundwater

35.

Complainants incorporate by

reference

as if

frilly

restated

herein,

paragraphs

1

through 34,

above.

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

ILCS

5/12(a).

37.

Respondents

violated the Act when they improperly

handled, treated, stored

and

disposed of solid and

hazardous wastes, thereby dausing, 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.

38.

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.

7

---

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

fiom the Site.

Count III

—

Contaminants Upon

Land

40.

Complainants

incorporate

by reference

as if fully restated

herein,

paragraphs

1

through 39,

above.

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).

42.

Respondents

violated the Act

when they improperly handled, treated, 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.

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.

44.

Respondents

are

liable

under

the

Act

for

Complainants’

costs

incurred

in

the

investigation,

removal,

and

reporting

to

USEPA

of contaminants Respondent failed

to

remove

from the Site.

PRAYER

FOR RELIEF

WHEREFORE,

Complainants

demand

judgment

in

their

favor

and

against

the

Respondents,

and each ofthem:

A.

declaring each Respondent jointly and severally

liable and

awarding to

Complainants

all past costs ofresponse incurred by Complainants, with interest as provided by law;

8

---

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

ordering Respondents

to

abate

and

rernediate

contamination should

additional remediation be

required by administrative order orjudicial decree;

D.

awarding to

Complainants

their costs

of litigation,

including reasonable attorney and

expert witness fees; and

B.

ordering such other relief as is appropriate and just.

Respectfully submitted this ~~ty

ofFebruary 2005

GRAND

PIER CENTER LLC

AMERICAN INTERNATIONAL

SPECIALTY

LINES

INSURANCE Co.

By__

~~1~i~nts’

Attorneys

Frederick S. Mueller

Daniel

C. Murray

GalTett

L. Boehm, Jr.

JOHNSON& BELL,

LTD.

Suite

4100

55

East Monroe Street

Chicago, Illinois 60603-5803

Tel. (312) 372-0770

1181048

9

---

CERTIFICATE OF SERVICE

I,

the undersigned,

on

oath, state that

I

have served on the date of February 25,

2005,

the

attached formal complaint and notice by Certified mail, upon the following persons:

Donald J. Moran

PEDERSEN & HOUPT

161

North Clark

Street, Suite 3100

Chicago, Illinois 60601-3242

Attorneyfor River East LLC and

C’hicago Dock and Canal Trust

John

T.

Smith II

COVINGTON & BURLING

1201 Pennsylvania Avenue N.W.

Washington, D.C. 20004-240 1

Attorneyfor Kerr-McGee C’hemical LLC

G nett~~Bbe~,

r.

JOHJ~ON

&~BELL,LTD.

55 East Monroe Street, Suite 4100

Chicago, IL

60603

(312)372-0770

Subscribed to

and sworn before me

Ti

~)5t11

,4

ç

r~

.

us

~.

~ay

Oi

euluary,

~.

UI1

~1 ~ ~

~

___________

NOTAR~P~V

T~I~O~

Noth’ry Public

M

COrfl~fii~o~!

~

0/20/2005

My commission expires:

~

~

---

GRAND PIER CENTER LLC

AMERICAN INTERNATIONAL

SPECIALTYLINES INSURANCE CO.

as subrogee of

Grand Pier Center LLC

Complainants

V.

________

RIVER EASTLLC

CHICAGO DOCK AND CANAL

TRUST

CHICAGO DOCK AND CANAL

COMPANY

KERR-MCGEE CHEMICAL LLC

NOTICE

OF FILING

To:

Donald J. Moran

John T.

Smith II

PEDERSEN & HOIJPT

COVINGTON &

BURLING

161 North Clark. Street, Suite 3100

1201

Pennsylvania Avenue. N.W.

Chicago, IL 60601-3242

Washington, D.C. 20004-2401

PLEASE

TAK.E

NOTICE

that

I

have

today

filed with

the

Office

of the

Clerk

of th~

Illinois

Pollution

Control

Board

(Board),

the

APPEARANCE

of Grand Pier

Center LLC

and

American

International

Specialty Lines Insurance Co.,

as subrogee of Grand Pier Center LLC, a

copy ofwhich is herewith served upon yo~

Th

with thJ~s~otice.

~ett

.

o

in,

Jr.

Dated: February 25, 2005

(

Frederick S. Mueller

Daniel

C.

Murray

Garrett L. Boehm, Jr.

JOHNSON & BELL,

LTD.

55

East Monroe Street, Suite 4100

Chicago, Illinois 60603-5803

Tel. (312) 372-0770

Attorneysfor Grand Pier CenterLLC and

American International Specialty Lines Insurance

Co.,

BEFORE THEILLINOIS

POLLUTION CONTROL BOARD

RECEIVED

CLERK’S OFFICE

FEB252005

)

STATE OF ILLINOIS

)

POll

utiori Control Board

)

)

)

)

)

PCB

V

)

(Enforcement,)

)

)

)

)

)

---

BEFORE THE ILLINOIS

RE C

E IV E

POLLUTION CONTROL BOARD

CLERK’S OFFICED

GRAND PIER CENTER LLC

)

FEB

252005

AMERICANINTERNATIONAL

)

STATE OF ILLINOIS

SPECIALTYLINES INSURANCE CO.

)

Pollution Control

Board

as subrogee of Grand Pier Center LLC

)

)

Complainants

)

v.

)

PCB___

)

(Enforcement)

RIVER EASTLLC

)

CHICAGODOCKAND CANAL TRUST

)

CHICAGODOCKAND CANAL COMPANY

)

KERR-MCGEE CHEMICAL LLC

)

)

Respondents

APPEARANCE

I hereby filed my appearance in this proceeding, on behalfof Grand Pier Center LLC and

American

International Specialty Lines Insurance Co., as subrogee of Grand Pier Center LLC.

BY~~co~aali~:Attol:neys

Frederick S. Mueller

Daniel

C. Murray

Garrett L. Boehm, Jr.

JOHNSON & BELL,

LTD.

Suite 4100

55

East Monroe Street

Chicago, Illinois 60603-5803

Tel.

(312) 372-0770

Doc.

1188174

---

CERTIFICATE OF SERVICE

I, the undersigned, on oath, state that I have served on

the date of February 25,

2005,

the

attached APPEARANCE and notice by Certified mail, upon the following persons:

Donald J. Moran

PEDERSEN&HOUPT

161 North Clark

Street, Suite 3100

Chicago, Illinois 60601-3242

Attorneyfor River East LLC and

Chicago Dock and

G’anal Trust

John T. Smith II

COVINGTON &

BURLING

1201 Pennsylvania Avenue N.W.

Washington, D.C. 20004-2401

Attorneyfor Kerr-McGee

ChemicalLLC

~anettoéJ~,

Jp~

JO~B~N~ON

~‘BELL,

LTD.

55

East Monroe Street, Suite 4100

Chicago, IL 60603

(312) 372-0770

Subscribed to and sworn before me

This

2501

day of February, 2005.

,

///~

(

i~’,ik~c,

~

~

CYNTH0~

LE/~

TEMPEL

~NOTAF~Y

PU3Lft;

~JATk

OF 1LLINOIS

~~~1Is

c~

My commission

expires: