GRAND PIER CENTER LLC
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO.
as subrogee ofGRAND
PIER CENTER LLC
Complainants,
RIVER EAST LLC
CHICAGO DOCK AND CANAL TRUST
CHICAGO DOCK AND CANAL
COMPANY
KERR-McGEE CHEMICAL LLC
Respondents.
TO:
Frederick S. Mueller
Daniel C. Murray
Garrett L. Boehm, Jr.
JOHNSON & BELL, LTD.
55 East Monroe Street
Suite 4100
Chicago, IL
60603-5803
)
JUN132O~
)
PCB 05-157
)
(Enforcement)
)
)
)
)
)
)
)
Donald J. Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601-3242
PLEASE TAKE NOTICE that on June 13, 2005, we caused to be
filed with the Illinois
Pollution Control Board in the James R. Thompson Center, Chicago, Illinois, the ANSWER OF
KERR-MCGEE CHEMICAL LLC,
copies of which are served upon you along with this notice.
Kerr-McGee Chemical LLC
Michael P. Connelly
Garrett C.
Carter
ConnollyRoberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
Tele: (312) 251.9600
By:
~
~
~~~One
ofits atto&~s
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
RECEIVED
CLERKS OFFICE
V.
)
)
)
)
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
I:\2470\040\Notice ofFiling -4 06.10.05
BEFORE THE ILLiNOIS
POLLUTION CONTROL BOARD
JUN
132Of~
GRAND PIER
CENTER LLC
)
AMERICAN II’4TERNATIONAL
)
P~Tui1~
j~j~
SPECIALTY LINES INSURANCE CO.
)
as subrogee of
GRAND 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.
)
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 THE ACTION
1.
This is a citizen suit brought to enforce Sections 12(a),
12(d) and 21(e)
of the illinois Enviromnental 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.
1.
Respondent admits that the statements in paragraph
1
characterize the
Complainants’ action.
AS TO JURISDICTION AND VENUE
2.
For each of Complainants’ claims, the illinois Pollution Control Board
has jurisdiction and authority to declare and enter judgment ofthe rights and responsibilities
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.
2.
Respondent denies the allegations ofparagraph 2.
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.
3.
Respondent is without knowledge or information sufficient to form
a belief
as to the truth ofthe 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 to Respondents 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
suedas 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.
6.
Respondent is without knowledge or information sufficient to form
a belief
as to
the truth ofthe allegations ofparagraph 6.
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.
7.
Respondent is without knowledge or information sufficient to form a belief
as to the truth ofthe allegations of paragraph 7.
8.
Respondent Kerr-McGee Chemical LLC, a
Delaware limited liability
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 II is situated in an urban area known as
Streeterville, and is surrounded by commercial and residential buildings.
The Chicago River
is located approximately
1/4
mile south,
and lake Michigan is about
~/z
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 H 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 ofparagraph
10.
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).
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 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.
13.
Respondent denies the allegation of the first sentence of paragraph
13.
Respondent admits the allegation of the
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 ofparagraph
13.
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.
14.
Respondent denies the allegations ofparagraph
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 ofparagraph
15.
AS TO 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.
16.
Respondent admits the
allegations of paragraphs
16.
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
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 of the 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 implementation of an air
monitoring program, the removal of contamination, and the disposal of hazardous
substances.
19.
Respondent admits
the allegations ofparagraph
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 of the
5
allegation 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 UAO was issued
to Grand Pier Center LLC for the RV3 Site.
21.
Respondent is without knowledge
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 ofparagraph 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.
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.
24.
~.espondentdenies
that Grand 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 of the
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 the RV3 Site.
25.
Respondent denies that it is a liable person for costs of response at the RV3
6
Site, but admits that
it is a person, as that term is defined in Section 3.3 15 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 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.
28.
Respondent denies
that Lindsay Light Company disposed of hazardous
substances at the
RV3 Site,
including but not
limited to
thorium, but admits that
“hazardous
substances” is
a term defined in Section
3.215
of the Act (415 ILCS
5/3.215).
Respondent is
without knowledge or information sufficient to form
a belief as to the truth of the remaining
allegations ofparagraph 28.
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.
29.
Respondent denies that
any response costs to
remove contamination and
remediate the RV3
Site were caused by anything other than Grand Pier’s excavation of the Site as
part of its development plan, which
it pursued for its ownbusiness purposes,
and on that basis
Respondent denies the allegations ofparagraph 29,
except that Respondent is without knowledge 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 contamination at 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 of the Act and regulations and standards thereunder for such disposal,
treatment, storage and abandomnent of waste.
32.
Respondent denies the
allegations ofparagraph
32.
33.
As
a result ofRespondents’
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 ofparagraph 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
ontaminant 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 ILCS
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 of paragraph 37.
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.
38.
Respondent denies the allegations ofparagraph 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 III
-
CONTAMINANTS UPON LAND
*
40.
Complainants incorporate by reference as if fully restated herein,
paragraphs 1 through 39,
above.
4Q.
Respondent repeats its answers to paragraphs
1
though 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).
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 ofparagraph 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.
~espondents
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 ofthem:
A.
declaring each Respondent jointly and severally liable and awarding to
Complainants all past costs of response incurred by Complainants, with interest as provided
by law;
B.
declaring each Respondentjointly and severally liable and awarding to
Con~plainantsall 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 andjust.
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 2 1(e),
12(a),
and
12(d) ofthe 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 III 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
their injuries,
if any,
and because they are liable under the Illinois Environmental Protection Act.
SIXTH AFFIRMATIVE DEFENSE
Complainants’ claims are barred,
in
whole or in part, because of the preceding,
intervening and/or superseding
acts of third parties or because of events over
which Respondent
had iio control.
SEVENTH AFFIRMAT~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, II, and III of the Complaint are preempted by federal law.
NINTH AFFIRMATIVE DEFENSE
With respect to Counts I, II, and Ill ofthe Complaint,
Respondent is entitled to
11
contribution protection under 42 U.S.C.
§
9613(0(2).
TENTH AFFIRMATIVE DEFENSE
In the event and to
the extent that Respondent is found liable in this action,
the
amount of any 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 deemjust and proper.
12
Respectfully submitted,
~~iIchae1
P. Conn~IIy
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
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 ofrecord 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.
L~1~
Subscribed and sworn to
before me June 13, 2005.
)iL~
~
Notary Public
~‘OFFICIAL
SEAL”
MICHELLE M.
PATTERSON
NOTARY
PUBLIC STATE OF
IWNC)fS
Commission
tree 04/28/2008
I:\2470\040\pleadings\eos040405
