ONE NORTH
FRANKLIN STREET, SUITE 1200, CHICAGO, ILLINOIS 60606
TELEPHONE: 312-251-9600
FACSIMILE:
312-251-9601
EMAIL:
GCARTER@CRMLAW.COM
GARRETF C. CARTER
CONNELLY ROBERTS & McGJVNEY LLC
fl~ll~A
~
STATE OF ILLINOIS
Apnl 5,2005
Pollution Control Board
VIAU.S.MAIL
A
05
-/~1
Mr. John Therriault
Illinois Pollution Control Board, Clerk’s Office
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
Re:
Grand Pier Center LLC et a!. v. Kerr-McGee Chemical
LLC,etaL
PCBO5-157
Dear John:
Pursuant to our telephone conversation from this afternoon, enclosed please find
nine copies ofExhibits “A” and “B”.
Please accept these exhibits as addendums to Kerr-
McGee Chemical LLC’s Motion to Dismiss the Complaint.
Ifyou have any questions or
concerns, please feel free to contact me.
Verytruly yours,
Enclosures
I
UNITED STA TES DISTRICT COURT
NORTHERN DISTRICT OFiLLINOIS
EASTERN DI
VISION
~
GRAND PIER CENTERLLC
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
)
as subrogee of
GrandPier Center LLC
)
P1aint~ffs
)
)
v.
)
No. 03C7767
)
Judge Filip
RIVEREASTLLC
)
CHICAGODOCKAND CANAL TRUST
)
CHICAGODOCKANDCANAL COMPANY
)
KERR-MCGEE CHEMICALLLC
)
)
Defendants
)
SECOND
AMENDED COMPLAINT
Plaintiffs
Grand
Pier
Center LLC
and American International
Specialty Lines
Insurance
Co., as subrogee ofGrand Pier Center LLC,
by their attorneys
JOlINSON &
BELL,
LTD., for their
Second Amended
Complaint against
the Defendants River East
LLC;
Chicago Dock and Canal
Trust; Chicago Dock and Canal Company, and Kerr-McGee
Chemical LLC, aver as
follows:
I.
This
is
a
civil
action
brought
pursuant
to
Sections
107
and
113
of
the
Comprehensive
Environmental
Response, Compensation
and Liability Act of
1980
(CERCLA)
(42 U.S.C.
9607(a), 9613(0(1)),
as
amended,
for cost recovery and contribution 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.
Plaintiffs
)
.
.
_______
also assert their state
law claims of strict liability
for abnormally dangerous activity, negligence,
and contribution.
2.
For
each
of
Plaintiffs’
CERCLA
claims,
this
court
has
exclusive,
original
jurisdiction, pursuant to
42 U.S.C.
9613(b), and original jurisdiction
under
28 U.S.C.
1331.
For
each
of
Plaintiffs’
state
law claims,
this court
has
supplemental
jurisdiction,
pursuant
to
28
U.S.C.
1367.
3.
This court has
authorityto declare and enterjudgment on the rights and liabilities
of the parties, pursuant to 42 U.S.C. 9613(g) and 28 U.S.C. 2201, 2202.
4.
Venue is proper
in this district, pursuant
to 42
U.S.C. 9613(b)
(the district where
the
release
or
damages
occurred)
and
28
U.S.C.
1391(b)
(where
the
events
or
omissions
occurred, and the property is situated).
5.
Plaintiff
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.
6.
Plaintiff American
International
Specialty Lines
Insurance
Co.
(AISLIC)
is
an
Alaska corporation, with its principal
office in New York, New
York.
AISLIC
is subrogated to
certain claims that Grand Pier has against Defendants for damages Defendants caused to
Grand
Pier.
7.
Defendant
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 to Chicago
Dock and Canal Trust, and Chicago Dock and Canal Company.
2
I
)
8,
Defendant 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.
9.
Defendant
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.
10.
Kerr-McGee
Chemical LLC, a Delaware
limited liability company authorized to
do
business
in
Illinois,
is
an
afliliate of Kerr-McGee
Chemical
Corporation, successor of and
successorin interest to Lindsay Light
and
Chemical Company and Lindsay Light Company.
The
RV3
North Columbus Drive Site
11.
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
‘/4
mile
south,
and
Lake Michigan is about
V2
mile east
of the
Lindsay Light
II
Site.
12.
RV3
North
Columbus
Drive
Site
(the RV3
Site),
the parcel of land pertinent to
this lawsuit,
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.
3
Contamination of the RV3 Site
13.
From
at
least
1915
to
1933,
the
Lindsay
Light
Company
manufactured
incandescent gaslights and gaslight mantles.
The Lindsay
Light Company
was headquartered at
161
East Grand Avenue, designated
by USEPA as
the Lindsay Light
I Site.
14.
Gaslight mantle manufacturing
involved dipping gauze mantle bags into solutions
containing
thorium nitrate.
The principal
ingredient
in
thorium
nitrate
is radioactive
thorium,
specifically thorium-232, which is a CERCLA hazardous substance.
Thorium occurs principally
as
the
parent
radionuclide
thorium-232
in
association with
its
daughter
products
in
a decay
sequence known as theThorium Decay Series, with
a half-life of 14 billion years.
15.
As
part of the
gaslight
mantle
manufacturing
business,
Lindsay
Light Company
refined radioactive monazite ore at or near the Lindsay Light
II
site.
In extracting thorium from
mona2ite
ore, the
processed
tailings contained
radionuclides,
specifically
thorium,
radium
and
uranium.
Lindsay
Light
Company’s refining
process generated
radioactive
mill tailings
which
were disposed of as fill material throughout Streeterville.
16.
The RV3 Site which
is the subject of this lawsuit is situated between the Lindsay
Light
I
gaslight mantle
manufacturing
facility at
161
B.
Grand
Ave.
and
the
Lindsay
Light
II
monazite ore processing facility at 316 E. Illinois St.
17.
Between
at
least
1915
and
1933,
Lindsay
Light
Company
operated
its
incandescent
gaslight mantle manufacturing
business
at the
Lindsay Light
I
and
H Sites,
and
arranged
for
the
disposal
of
hazardous
substances
at
the
Sites,
including
the
RV3
North
Columbus
Drive parcel, the parcel pertinent to this lawsuit.
4
18.
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.
Remedlation of
the RV3
Site
19.
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.
20.
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,
21.
Thereafter,
the
USEPA
required
additional
work,
which
was
cdnducted
in
accordance
with
the
Sidewalk
Remediation
Work
Plan
dated March
9,
2001
and
approved
by
USEPA on April
11,2001.
22.
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 ofhazardous substances.
5
23.
Grand Pier Center LLC,
as the then
current owner ofthe 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.
24.
The removal
activities under
the Work
Plan
began
on April
4,
2000,
and
Grand
Pier Center LLC has been in
compliance with the tJAO
since the UAO
was
issued to Grand Pier
Center LLC for the RV3 Site.
25.
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.
26.
USEPA issued Letters of Completion on August 26,
2002 and on October
8, 2004
for the work performed according to the approved Work Plans.
27.
Grand
Pier and
AISLIC
incurred
necessary
response
costs
of
approximately
$2,300,000 at the RV3 Site, and continue to
incur additional
costs of response.
COUNT I
-
RECOVERY
OF COSTS
UNDER42 U.S.C. 9607(a)
28.
Plaintiffs incorporate by reference as iffully restated herein, paragraphs
1
through
27, above.
29.
Defendants River East LLC and
Chicago Dock and Canal Trust are successors of
and successors
in interest to the liabilities ofChicago Dock and Canal Company.
30,
Kerr-McGee
Chemical
LLC,
as
an
affiliate
of
Kerr-McGee
Chemical
Corporation,
is
successor
of and
successor
in
interest
to
the
liabilities
of Lindsay
Light
and
Chemical Companyand Lindsay Light Company.
6
)
I
31.
The
RV3
North
Columbus
Drive
Site
is
a
“facility,”
as
that
term
is
defined
in
Section 101(9) ofCERCLA
(42 U.S.C. 9601(9)),
32.
Upon
information
and
belief,
Chicago
Dock
and
Canal
Company
owned
the
parcel ofland comprising the RV3 North Columbus Drive Site at the time that Lindsay Light and
Chemical
Company made disposals
at the
RV3
Site of “hazardous
substances,”
as that
term
is
defined
in
Section
101(14)
of CERCLA
(42
U.S.C.
§9601(14)),
including
but
not
limited
to
thorium.
33.
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.
34.
The
necessary response
costs
Grand
Pier
and
AISLIC
have
incurred
under
the
UAO,
the
UAO’s
First
Amendment,
and the
Work Plans
are
consistent
with
the
CERCLA’s
National
Oil
and
Hazardous
Substances
Pollution
Contingency
Plan
(promulgated
under
42
U.S.C. 9605(a), at 40
C.F.R. Part 300).
35.
Grand Pier was an innocent purchaser ofthe
RV3 Site, within the meaning of 42
U.S.C.
9601(35)
‘and
9607(b)(3).
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.
36.
Defendants are
liable
“persons”
under CERCLA
(42 U.S.C.
§
9601(21))
for
all
costs of response at the RV3 Site.
7
COUNT H
-
CONTRIBUTION UNDER
42 U.S.C. 9607(a)(4)(B)
37.
Plaintiffs incorporate by reference as if fully restated
herein, paragraphs
1
through
36, above.
38.
Grand Pier
Center LLC
and
American
International
Specialty
Lines
Insurance
Co.,
although
denying
liability,
have
incurred
response
costs
associated
with
the
release
of
thorium
at the RV3 Site.
39.
Grand Pier has
denied
liability,
but
if Grand
Pier is liable,
then
Grand
Pier, and
AISLIC
as
subrogee of Grand
Pier,
are
entitled
to
contribution
from Defendants,
and
each of
them, pursuant to 42
U.S.C. 9607(a)(4)(B).
40,
Plaintiffs
are entitled
to
a declaration that Defendants,
and each ofthem, are liable
to
Plaintiffs for all
or
a proportionate
share of any damages and
costs of response incurred
by
Plaintiffs in connection with Plaintiffs’ response action at the RV3
Site.
COUNT LU
-
CONTRIBUTION
UNDER 42 U.S.C. 9613(I)(1)
41.
Plaintiffs incorporate by. reference as if fully restated herein,
paragraphs
I
through
40,
above.
42.
Grand
Pier
Center LLC
and
American
International
Specialty Lines
Insurance
Co.,
although
denying
liability,
have
incurred
response
costs
associated
with
the
release
of
thorium
at theRV3 Site.
43.
Grand
Pier has denied liability,
but if Grand
Pier
is liable,
then Grand Pier,
and
AISLIC
as
subrogee of Grand
Pier,
are
entitled
to
contribution
from
Defendants, and
each
of
them, pursuant to 42 U.S.C. 9613(f)(l).
8
44.
Plaintiffs
are entitled to
a declaration that Defendants,
and each ofthem, are liable
to
Plaintiffs
for
all
or
a proportionate
share of any damages
and
costs of response incurred
by
Plaintiffs
in connection with Plaintiffs’ response action at the RV3 Site.
COUNT IV
-
STRICT
LIABILITY
45.
Plaintiffs incorporate by reference as
if fully restated herein, paragraphs
1
through
44, above.
46.
Lindsay Light Company’s
manufacturing
processes utilized
radioactive
thorium,
and generated radionuclides, including thorium, which were disposed as waste at the RV3 Site.
47.
Thorium emits gamma radiation.
Emission of and exposure to elevated levels of
gamma radiation presents
a substantial threat to human health and the environment.
48.
Defendant
Kerr-McGee, as successor
to
Lindsay Light Company, owed a duty to
prevent injury and damage to
the land owned by
Grand
Pier, specifically the RV3 Site.
49.
Kerr-McGee
breached
its
duty
to
prevent
injury
and
damage
to
the
RV3
Site
parcel,
by
disposing
thereon
radioactive
waste
in
quantities
and
concentrations
that
are
dangerous to human health and the environment.
50.
By
reason
of
Kerr-McGee’s
disposal
of
radioactive
wastes
at
the
RV3
Site,
Plaintiffs have suffered injury and damages
calculable in both site remediation
costs
as
well
as
economic
loss to Grand Pier due to the consequent failure of Grand Pier’s
multi-purpose, mixed
use development of the RV3 Site.
51,
Because elevated
levels of radioactive
waste
cannot be
safely
disposed
by open
dumping into the urban
location known
as Streeterville, Kerr-McGee introduced a high degree of
risk of
harm
to property and persons.
9
52.
Because
Kerr-McGee’s
deposition
of radioactive
waste
was
pervasive
and
in
quantities
and concentrations
dangerous
to
human health and the
environment, the
likelihood of
harm
is great.
53.
Because
emission
levels
of
gamma
radiation
from
Kerr
McGee’s
thorium
contaminated
waste
exceed
applicable
government
regulations,
reasonable
care
does
not
eliminate the risk ofharm created by Kerr-McGee’s
waste disposal practice.
54.
Kerr-McGee’s open dumping of thorium
contaminated waste as described herein
is not a matter ofcommon
practice.
55.
Kerr-McGee’s open dumping of radioactive waste in Streeterville is inappropriate
in a populated urban area, in the immediate proximity of Lake Michigan and
the Chicago River,
and into soil that
is itself fill material.
56.
Kerr-McGee’s
open
dumping
of thorium
contaminated
waste
introduced
an
unusual
and
persistent danger into the Streeterville community.
57.
Kerr-McGee’s
waste
disposal
practices
as
alleged
herein
is
an
abnormally
dangerous activity,
for which Kerr-McGee is strictly liable to Plaintiffs.
COUNT V
-
NEGLIGENCE
58.
Plaintiffs
incorporate by reference as
if fully restated herein paragraphs
1
through
57,
above.
59.
In
undertaking
to
dispose
of its
hazardous
waste,
Defendant
Kerr-McGee,
as
successor to
Lindsay Light
Company, owed neighboring
landowners and their successor owners
and their insurers, including the Plaintiffs herein,
a
duty to
exercise reasonable care, so as not to
pollute
and
contaminate
Streeterville
properties with
radionuclides,
including
thorium
which
emits dangerous gamma radiation.
60.
Kerr-McGee
breached
its
duty
to
prevent
injury
and
damage
to
the
RV3
Site
parcel,
by
disposing
thereon
radioactive
waste
in
quantities
and
concentrations
that
are
dangerous to human health and the environment,
61.
By
reason
of
Kerr-McGee’s
disposal
of
radioactive
wastes
at
the
RV3
Site,
Plaintiffs have suffered
injury
and damages
calculable in
both
site
remediation costs
as
well
as
economic loss
to Grand
Pier due to the consequent failure of Grand Pier’s multi-purpose, mixed
use development of the RV3 Site.
COUNT VI-
CONTRIBUTION
UNDER
740
ILCS
100/2
62.
Plaintiffs incorporate by reference as iffully restated herein,
paragraphs
1
through
61, above.
63.
Grand
Pier
Center
LLC
and
American
International
Specialty
Lines
Insurance
Co., although denying
liability, have incurred costs and expenses
associated with the release of
thorium at the RV3 Site.
64.
Grand Pier
has
denied liability, but if Grand Pier is liable,
then Grand
Pier,
and
AISLIC
as
subrogee of
Grand
Pier,
are
entitled
to
contribution
from
Defendants,
and
each of
them, pursuant to the Illinois Joint Tortfeasors Contribution Act, 740 ILCS
100/2.
65.
Defendants,
and
each of them, are potentially
liable under CERCLA,
as set
forth
in Counts I, II and
III
of thisSecond Amended Complaint.
66.
Defendants,
and
each
of
them,
are
potentially
liable
under
the
Illinois
Environmental
Protection
Act
(415
ILCS
5/1)
for improper
disposal,
treatment,
storage
and
abandonnient
of
waste
(415
ILCS
5/21(e));
open
dumping
of
waste,
and
discharge
of
contaminants so
as to cause or tend to cause water pollution
(415 ILCS 5/12(a)), and disposal
of
contaminants upon land
so as to create a water pollution hazard.
415
ILCS
5/12(d).
11
67.
Defendant
Kerr-McGee,
as
successor
to
Lindsay
Light
Company,
is
potentially
strictly liable under
Illinois
common
law
for its
abnormally dangerous hazardous waste
disposal
activities,
as set forth in Count IV ofthis Second Amended
Complaint.
68.
Kerr-McGee
is potentially
liable
under
Illinois
common
law
for
its
predecessor
Lindsay
Light Company’s negligent hazardous
waste disposal activities,
as set forth
in Count V
ofthis
Second Amended Complaint.
69.
Plaintiffs
are
entitled to a declaration that Defendants,
and each of them, are liable
to Plaintiffs
for
all or a
proportionate share of any damages incurred by Plaintiffs
in connection
with the injuries Plaintiffs have suffered at the hands ofthe Defendants
at the RV3
Site.
PRAYER
FOR RELIEF
WHEREFORE,
Plaintiffs
demand judgment
in
their favor
and
against the
Defendants,
and each ofthem:
A.
declaring
each Defendant jointly and
severally liable
and
awarding to Plaintiffs
all
past costs ofresponse incurred by Plaintiffs,
with interest as provided by law;
B.
declaring
each Defendant jointly
and severally
liable
and awarding
to
Plaintiffs
all
future
costs of response,
if any, to
be incurred
by
Plaintiffs,
with interest
as provided
by
law;
C.
awarding to Plaintiffs compensatory damages, with interest as provided by law;
D.
awarding
to
Plaintiffs
their
costs
of litigation,
including
reasonable
attorney
and
expert witness fees; and
B.
ordering such otherrelief as may be appropriate and just.
12
JURY
DEMAND
Plaintiffs demand ajury trial ofall
issues triable by jury.
Respectfully submitted this 28th day of
February
2005
GRAND PIER
CENTER LLC
AMERICAN INTERNATrONAL SPECIALTYLINES
INSURANCE
Co.
By
~S~W-~-~
/~&~1rt~
One ofPlaintiffs’ Attorneys
Frederick S. Mueller
Daniel C. Murray
Garrett L. Boehm, Jr.
JOHNSON
&
BELL,
LTD.
Suite 4100
55
EastMonroe Street
Chicago, Illinois 60603-5803
Tel. 312
984 0226
13
Certificate
of
Service
I hereby
certify
that
on
February 28,
2005,
the
foregoing
Second
Amended
Complaint
was mailed by United
States Postal Service to the following:
Donald I. Moran
PEDERSEN
&
HOUPT
161
North Clark Street, Suite 3100
Chicago, IL 60601-3242
Attorney for River East LLC
and
Chicago Dock and Canal Trust
I
187566
John T,
Smith
II
COVINGTON
&
BURLJNO
1201
Pennsylvania Ave. N.W.
Washington, D.C.
20004-2401
Attorney for Kerr-McGee Chemical LLC
14
BEFORE THEILLINOIS
POLLUTION CONTROL BOARD
GRAND
PIERCENTERLLC
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINESINSURANCE CO.
)
as subrogee of Grand Pier Center LLC
)
)
Complainants
)
)
v.
)
PCB_____
)
(Enforcement)
RIVER EAST
LLC
)
CHICAGODOCKAND CANAL TRUST
)
CHICAGODOCKAND CANAL COMPANY
)
KERR-MCGEECHEMICALLLC
)
)
Respondents
)
COMPLAINT
Complainants
Grand
Pier
Center
LLC
and
American
International
Specialty
Lines
Insurance Co.,
as subrogee ofGrand 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
2 1(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.
~IT
UJ
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
JAC
103.200
and
Sections
5(d),
31(d) and
33(a) ofthe
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.
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
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 beenknown as CityFrontAcquisition 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 of and 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
‘/~
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,
r
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
5/3.460).
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 ofcontamination 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 parcel, the parcel pertinent to this
citizen suit.
15.
Chicago Dock and
Canal Company owned the RV3 North Columbus
Drive parcel
ofthe 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 ofadministrative 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 DocketNumber 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 ofcontamination, and the disposal ofhazardous 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 forthe 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
forthe 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 term is
defined by
Section 3.3 15
ofthe
Act (415 ILCS 5/3.3
15)
for all costs ofresponse atthe 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
ofthe 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
ofthe 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 ofthorium 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 fully
restated
herein, paragraphs
1
through 34,
above.
36.
The Act prohibits any person from causing, threatening, or allowing the discharge
ofany 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 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.
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
from 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 Respondents
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
remediate
contamination
should
additional remediation be required by administrative order or 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.
Respectfully submitted this
day of February 2005
GRAND
PIER
CENTER LLC
AMERICAN INTERNATIONAL
SPECIALTYLINEs INSURANCE
Co.
By___________________
One ofComplainants’
Attorneys
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
1181048
9
BEFORE
THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND
PIER CENTER LLC
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINES
INSURANCE
CO.
)
as subrogee
of
GRAND
PIER CENTER LLC
)
)
Complainants,
)
)
PCBO5-157
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 TO DISMISS THE COMPLAINT
Respondent, Kerr-McGee
Chemical LLC
(“Kerr-McGee”), respectfully asks the Illinois
Pollution Control Board
(“the Board”) 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’s Complaint is duplicitous and frivolous and thus
should be dismissed pursuant to
Ill. Admin.
Code tit.35,
§
104.414.’
Grand Pier’s Complaint is
duplicitous because it is substantially similar to a civil
action that Grand Pier filed
in the United
States District Court for the Northern District ofIllinois.
Grand Pier’s Complaint is frivolous
because it seeks relief that the Board does not have the authority to grant and it fails to
state a cause
ofaction upon which the Board can grant relief.
1
Section
103.212(b) ofTitle 35 ofthe Illinois Administrative
Code provides
that a
respondent may, within 30 days after service, move to
dismiss a complaint as duplicitous or
frivolous.
Kerr-McGee received service ofthe Complaint on March 3, 2005.
DC: 1735424-1
I.
Grand Pier’s Complaint
is
duplicitous
“Duplicitous’
or ‘Duplicative’ means the matter is identical or substantially similar to
one
brought before
the Board or another forum.”
35 Ill.
Adm. Code
101.202;
see
also Brandle v.
Ropp,
PCB
85-68,
1985 WL 21380,
*1(111. Pol.
Control Bd., June
13,
1985)
(Ex.
‘C’) (noting
that a complaint
is duplicitous if
it is
identical or
substantially similar to one brought in another
forum).
Grand Pier’s Complaint is duplicitous because
it is substantially similar to Grand Pier’s
Second Amended Complaint in an identically captioned action
that
is before the United States
District Court for the Northern District of Illinois
~2
A copy of Grand Pier’s Second Amended
Complaint in that action is attached as Exhibit ‘A.’
A
copy ofGrand Pier’s Complaint with the
Board is attached as Exhibit ‘B.’
The two actions are
against the same parties, are based on the
same contaminant,
are premised on the
same site,
and demand the same
relief.
In both
actions,
Grand Pier seeks recovery of “any costs incurred by Grand
Pier,
or to be incurred by Grand
Pier,
in performing response activities at the site
identified by EPA
as the RV3 North Columbus
Drive Site
(the RV3 Site) in Chicago, Illinois.”
(Ex.
A at
¶
1;
Ex. B
at
¶
1.)
Because Grand Pier
pursues a substantially similar action before the United States District Court for the Northern
District of Illinois, the Board should dismiss Grand Pier’s Complaint as duplicitous.
II.
Grand Pier’s Complaint is frivolous
“Frivolous’ means a request for relief that the Board does not have
the authority to grant,
or a complaint that fails to
state a cause of action upon which the Board can grant relief.”
35 Ill.
2
On March 1,
2005,
counsel for Grand Pier
informally notified Counsel for Kerr-McGee
that Grand Pier was filing (1) a Second Amended Complaint in federal district court to add state
law claims for negligence, strict liability, and contribution and (2) a Complaint before the Illinois
Pollution Control Board.
Those papers were filed on February 25, 2005 and February 28,
2005,
respectively.
Grand Pier filed its First Amended Complaint in the federal district court on
February 4,
2005.
2
Adm.
Code
101.202.
Grand Pier’s Complaint is
frivolous because it seeks relief that the
Board
does
not have
the authority
to grant and it fails to state a cause of action upon which the Board can
grant relief.
A.
The Board
is
not authorized to award the relief that Grand Pier demands
Grand Pier alleges in its Complaint that its action is to enforce Sections
12(a),
12(d)
and
21(e) of the Illinois Environmental Protection Act (“the Act”)
.~
(Ex.
‘B’ at
¶
1.)
The penalties for
violations ofSections 12(a),
12(d) or 21(e) ofthe
Act are set forth and limited by
415 ILCS
5/42(a).
That Section ofthe
Act provides,
in pertinent part, as follows:
Except as provided
in this Section, any person that violates any provision of
this Act or any regulation adopted by the Board, or any permit or term or
condition thereof, or that violates any order of the Board pursuant to
this
Act, shall be liable for a civil penalty of not to
exceed $50,000 for the
violation and an additional civil penalty of not to exceed
$10,000 for each
day during which the violation continues.
Grand Pier does not seek the imposition of the penalties referred to in the Act.
Instead,
Grand Pier seeks to
recover its own attorney fees, expert witness
fees, and past and future response
costs with interest.
(Ex.
‘B’ at 8-9.)~None of the relief sought by Grand Pier
is authorized by the
Section
12(a) provides that no person shall
“cause
or threaten or allow the discharge of
any contaminants into the environment in
any State so as to cause or tend to cause water pollution
in Illinois,
either alone or in combination with matter from other sources, or so as
to violate
regulations or standards
adopted by the Pollution Control Bard under this Act.”
415 ILCS
5/12(a).
Section
12(d) provides that no person shall
“deposit
any contaminants upon the land in
such place and manner so as to create
a waterpollution hazard.”
415 ILCS
5/12(d).
Section 21(e) provides that no person shall
“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 this Act and ofregulations and standards thereunder.”
415 ICLS
5/21(e).
Grand Pier also asks the Board
to rule that Respondents are responsible for any future
remediation.
Grand Pier’s request is pointless in light
ofGrand Pier’s own allegation that Letters
ofCompletion were issued by the United States
Environmental Protection Agency with respect to
the site at issue.
(Ex.
‘B’ at
¶11
22-23.)
3
