RECE~VED
CLERK’S OFFICE
BEFORE
THE ILLINOIS
AD~
04
POLLUTION CONTROL
BOARD
~
STATE OF ILLINOIS
GRAND PIER CENTER LLC
)
Pollution Control Board
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE
CO.
)
as subrogee
ofGRAND PIER CENTER LLC
)
)
Complainants,
)
)
PCB 05-157
v.
)
(Enforcement)
)
RIVEREAST 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
NOTICE OF MOTION
I
~~1~aL
~
PLEASE TAKE NOTICE that on the ‘f
day of
tti-’Yl
,
2005, at
.m. I shall
appear before the Illinois Pollution Control Board in the James R.
Thompson Center, Chicago,
Illinois and present KERR-McGEE
CHEMICAL
LLC’S MOTION
TO DISMISS THE
COMPLAINT.
Kerr-McGee Chemical LLC
~
~
One ofits at~i~ys
Michael P. Connelly
Garrett C. Carter
Connelly Roberts &
McGivney LLC
OneNorth Franklin Street
Suite
1200
Chicago, Illinois 60606
Tele: (312) 251.9600
I:\2470\040\Notice ofMotion
RE
CE ~
BEFORE
THE
ILLINOIS
CLERK’S
OFFICE
POLLUTION
CONTROL BOARD
APR
042005
GRAND
PIER CENTER LLC
)
STATE OF ILLINOIS
AMERICAN
INTERNATIONAL
)
Pollution
Control Board
SPECIALTY LINES
1NSIJRANCE 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 CHEMILCAL
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
of action upon which the Board
can grant relief.
Section
103.212(b) ofTitle 35 of the 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 of the 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 Iii.
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 ofIllinois.2
A copy of Grand Pier’s Second
Amended
Complaint in that action is attached as Exhibit
‘A.’
A copy of Grand 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 ofaction 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 of Sections
12(a),
12(d) or 21(e) of the Act are set
forth and limited
by 415
ILCS
5/42(a).
That Section of the 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 ofthe 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 water pollution 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 of regulations 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 of Grand Pier’s own allegation that Letters
of Completion were issued by the United
States Environmental Protection Agency with respect to
the site at issue.
(Ex.
‘B’ at
¶~J
22-23.)
3
Act for the violations of Sections
12(a),
12(d) or 21(e).
Indeed,
the only provision of the Act that
contemplates the reimbursement of response costs does
so only with respect to response costs
incurred by Illinois
or a unit of local government.
See 415
ILCS 5/22.2(1)
(“Notwithstanding any
other provision or rule of law,
and subject only to the defenses
set forth in subsection (j) of this
Section,
the
following persons shall be liable for all
costs ofremoval or remedial action
incurred
by the State of Illinois or any unit of local government
as a
result of a release or substantial threat
of a release of a hazardous substance or pesticide
.
.
.
.“)
(emphasis added).
B.
Grand Pier
fails to state a cause of action
upon which the Board can grant
relief
Grand Pier’s claims are premised on activities that it alleges
occurred in the first third of
the twentieth century, decades before Illinois
enacted the
statutory bases upon which Grand Pier
relies.
The only contamination-activity alleged by Grand Pier is that described in paragraph
14 of
its Complaint, wherein Grand Pier
alleges that “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 parcel pertinent to
this
citizen suit.”
Sections
12(a),
12(d) and 2 1(e) ofthe Act do not provide Grand Pier a cause of
action for activities that occurred decades before their enactment.
Indeed, liability
under Section
21(e) for activities prior to the Act is a logical impossibility,
as liability under that Section
is
explicitly premised on the failure to dispose of waste
“except at a site or facility which meets the
requirements of this
Act and of regulations and
standards thereunder.”
415 ICLS
5/21(e).
CONCLUSION
Grand Pier’s Complaint is duplicitous because it is
substantially similar to Grand Pier’s
action against Respondents before the United States District Court for the Northern District of
Illinois.
Grand Pier’s Complaint is frivolous because it request relief that the Board is not
4
authorized to
grant and fails to
state a cause of action upon which the Board may grant relief.
For
these reasons, Kerr-McGee respectfully asks the Board to dismiss
Grand Pier’s Complaint.
Dated:
April 4,
2005
Respectfully
submitted,
Kerr-McGee Chemical LLC
Michael P.
Connelly
~~neofitsAtt~~
Garrett C.
Carter
Connelly Roberts &
McGivney LLC
One North Franklin Street
Suite
1200
Chicago, Illinois 60606
(312)
251-9600
J.T.
Smith II
COVINGTON &
BURLING
1201
Pennsylvania Ave., N.W.
Washington, D.C.
20044-7566
(202) 662-6000
Attorneys for Respondent
Kerr-McGee Chemical LLC
5
CERTIFICATE OF SERVICE
I, Lynne Pudlo, a non-attorney,
being first sworn on oath, depose
and state that I
served the attached document 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 April 4, 2005.
Subscribed and sworn to
before me April 4, 2005.
Notary Public
“OFFICIAL
SEAL”
MICHELLE
M. PATTERSON
NOTARY
PtJSUC
STATE
OF IWNO~S
COmmISSIOn
fras04/28/208
I:\2470\040\pleadings\cos040405
SERVICE LIST
Frederick J. Hess, Esq.
River East, LLC
325
5. High
Street
Belleville, IL
62220
David Grossberg, Esq.
Chicago Dock and Canal Company
233
S. Wacker Drive
6600 Sears Tower
Chicago, IL
David Grossberg, Esq.
Chicago Dock and Canal Trust
233
5.
Wacker Drive
6600 Sears Tower
Chicago, IL
Daniel E. McLean
455
East Illinois
Suite
565
Chicago, IL
60611
