•
REC~E~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
005
STATE
OF ILUNOIS
GRAND PIER
CENTER LLC
)
Pollution Control
Board
AMERICAN INTERNATIONAL
)
SPECIALTYLINES INSURANCE CO.
)
as subrogee of Grand Pier Center LLC
)
)
Complainants
)
)
v.
)
PCBO5-157
)
(Enforcement)
RIVER EASTLLC
)
CHICAGO DOCK AIVD CANAL
TRUST
)
CHICAGODOCKAND CANAL
COMPANY
)
KERR-MCGEE CHEMICAL LLC
)
)
Respondents
)
COMPLAINANTS’ MEMORANDUM IN OPPOSITION TO
KERR-MCGEE
CHEMICAL LLC’S MOTION TO
DISMISS THE COMPLAINT
Respondent Kerr-McGee
Chemical LLC
(Kerr-McGee)
raises three argument
to
support
its motion
to
dismiss
the Complaint:
(1) this matter is
duplicative of pending litigation between
the same parties in federal district
court; (2) this
matter is
frivolous because the Board
lacks the
authority
to
grant the
relief
Complainants
seek;
and
(3)
this
matter
is
frivolous
because
the
Illinois Environmental Protection Act (Act) does not apply to contamination which first occurred
prior
to
the
effective
date
of the
Act.
Complainants
Grand Pier
Center
LLC
and
Ameriban
International
Specialty Lines
Insurance
Co.
as subrogee of Grand Pier
Center
L.LC respectfully
submit
that
Kerr-McGee’s
arguments
are meritless.
Consequently,
Complainants
request
the
Board
to
deny
Kerr-McGee’s
motion
to
dismiss
and
to
enter
an
order
establishing
that
the
Complaint
is
neither
duplicative
(sometimes
termed
“duplicitous”) nor
frivolous.
This
matter
should be set for hearing.
I.
APPLICABLE PRECEDENT UNDENIABLY SHOWS
THAT THIS COMPLAINT
IS NOT DUPLICATIVE.
The Complaint pending before the
Board
is
not
duplicative of other pending litigation
between the parties.
To
be
clear,
Complainants’
Complaint before the Board
and
the pending
Second
Amended
Complaint
before
the
federal
district
court
against
the
same
Respondents
including
Kerr-McGee,
arise out
of the
same operative
facts.
However,
the
two
Complaints
allege
different
causes of action.
The six-count Second
Amended Complaint before the federal
district
court
seeks
relief
under
CERCLA
pursuant
to
42
U.S.C.
9607(a),
42
U.S.C.
9607(a)(4)(B),
42
U.S.C.
96l3(f~(1),common
law
strict liability,
common
law
negligence, and
the Illinois
Contribution Act,
740
ILCS
100/2.
On the other hand,
the three-count
Complaint
before the Board
exclusively seeks relief according to
the Illinois
Environmental Protection Act,
sections
12(a),
12(d) and 2 1(e).
In an analogous
circumstance
in
G’hrysler Realty
Corp.
v.
Thomas Indus.,
Inc.,
PCB
01-
25
(Dec.
7,
2000), this
Board
held
that
Chrysler Realty’s
complaint
before the
Board
seeking
relief under the Act and the Leaking Underground Storage Tank Program was not
duplicative of
pending
litigation
in
the
federal
court
sounding
in
federal
law,
negligence,
and
unjust
enrichment.
Notably, Chrysler Realty’s allegations under the Act sections
12(a),
12(d) and 2 1(e)
were
dismissed
by
the
federal
court
for
lack
of jurisdiction.
See
Chiysler
Realty
Corp.
v.
Thomas
Indus.,
97
F.Supp.2d
877
(N.D.
Ill.
2000).
Accordingly,
in
this
case,
seeking
relief
under the
Act
in federal
court would
have been pointless.
Thus,
Complainants herein filed suit
before the Board, rather than the federal court,
for relief under the
Act.
To
deny
Complainants
their day before the Board would require Complainants
to
elect between asserting their rights
in
federal
court or before the Board, when the
law plainly provides that
Complainants have viable,
but separate,
claims in
each forum.
See
also Dayton Hudson
C’orp.
v.
Cardinal
Inclus.,
Inc.,
PCB
2
97-134 at
3-5
(Aug.
21,
1997) (holding Board
action
sounding in
violations of the
Act
was
not
duplicitous of similar
federal
action
sounding
in
violations
of CERCLA);
Lake
County Forest
Preserve
Dist.
v.
Ostro,
PCB
92-80
(July
30,
1992)
(holding
that
Board
action
was
not
duplicitous
of federal
action
filed on
the same
day
involving
the same
parties, the
same
time
frame,
and the same actions, because the federal
action was based
on
statutes
and
legal theories
other than the
Act).
This Board’s clear precedent in
Chrysler
Realty,
PCB
01-25
(Dec.
7,
2000),
established that Complainants’ instant
cause is not duplicative.
II.
THE BOARD HAS REPEATEDLY HELD IT HAS AUTHORITY TO
ISSUE
ORDERS
REQUIRING REIMBURSEMENT OF CLEAN-UP COSTS.
Complainants
seek
relief
for
past
and
future
costs
of response
at
the
RV3
North
Columbus
Drive
Site,
costs
of litigation,
and
an
injunction ordering
Respondents
to
complete
future
remediation if required
by
administrative
order
or judicial
decree.
Kerr-McGee
argues
that this Board
lacks the authority to grant such relief
Kerr-McGee is mistaken.
First, th~
Board has consistently held
that
it has the authority
to
award
cleanup
costs
to
private parties for a violation of the Act.
See
C’hrysler
Realty,
PCB
0 1-25 (Dec.
7,
2000);
Lake
County Forest Preserve
Dist.
v.
Ostro,
PCB
92-80 (March 31,
1994).
Furthermore, as noted
in
this
Board’s
Ostro
decision,
the Board’s
authority
to
grant
such
relief
is
based
on
the
broa.d
language of Section
33(a) of the Act
(415 ILCS
5/33(a))
as well
as
the Illinois
Supreme
Court
decision in
People
v.
Fiorini,
143
Ill.2d
318
(1991).
Ostro,
PCB
92-80
at
12-13
(March
31,
1994).
Moreover,
the Supreme Court in
Fiorini
held that an
award of clean-up
costs
is properly
left to
the
trial
court’s
(or Board’s)
authority.
Fiorini,
143
Ill.2d at
350;
Chrysler Realty,
PCB
01-25 at
3 (Dec.
7, 2000).
3
Second, the Act provides clear authority for the Board to order a party to
cease and
desist
from violations of the Act or of the Board’s rules
and regulations.
Chrysler Realty,
PCB
0 1-25
at
3
(Dec.
7,
2000) citing
415
ILCS
5/33(b).
Contrary to
Kerr-McGee’s
contention, the Board
has injunctive powers.
Furthermore, such an
injunction would not be “pointless” as Kerr-McGee
argues.
As
stated in the Complaint, Complainants
continue to incur additional costs of response.
Complaint
¶
24.
The proof ofthis allegation will be demonstrated at hearing.
Accordingly,
there
is
no
merit
to
Kerr-McGee’s
claim
that
the
allegations
raised
by
Complainants are frivolous.
III.
THE
ACT GOVERNS THE
CLAIMS
AS
PLED
BY COMPLAINANTS.
Kerr-McGee’s
final
mistaken
argument
in
support
of its
motion
to
dismiss
is
that
Complainants cam~otseek relief for the clean-up costs of contamination that
occurred before the
Act was signed
into
law.
Kerr-McGee would
strip
the
Act
of any authority
over any
clean-up
operations
concerning
sites
initially
contaminated
prior
to
enactment
of
the
Act;
Not
surprisingly,
Ken-McGee .provides
no
authority
for
such
a
startling
conclusion.
In
fact, the
legislature intended the Act
to
have r~troactiveeffect as the appellate
court determined
in
State
Oil
Co.
v.
Pollution Control Board,
822 N.E.2d 876 (2d Dist. 2004).
That opinion held:
We find indications in section 2 of the Act
(15 ILCS
5/2 (West 1996)) that
the
legislature
generally
intended
the
Act
to
be
given
retroactive
application.
•
Specifically,
section
2(a)(vi)
states,
“despite
the
existing
laws
and
regulations
concerning
environmental damage
there exist
continuing
destruction
and
damage
to
the
environment.”
(Emphasis
added.)
415
ILCS
5/2(a)(vi)
(West
1996).
Section
2(b)
states
that
one
of
the
purposes
of
the
Act
is
to
reslore
the
environment.
415
ILCS
5/2(b)
(West
1996).
Thus,
it
is
clear that the legislature
intended the Act to
address ongoing problems, which by definition existed at the
time
that the Act was enacted.
Additionally, the Act calls for liberal construction
to
effectuate
its
purposes.
415
ILCS
5/2(c)
(West
1996).
Accordingly,
we fInd
that
the
legislature
man~festedan
intent
that
the
Act
be
generally
given
retroactive application...
State Oil,
822 N.E.2d at
882 (Emphasis added).
4
The
wrongful
acts
of Ken-McGee
over
70
years
ago
resulted
in
radioactive
thorium
contamination
that
has
persisted
to
the present
day.
Complaint
¶
12-14,
17-24.
Furthermore,
Complainants first
incurred costs related to the clean
up of the RV3 Site in
2000
and continue to
incur
costs today.
Id.
These
costs
were incurred by Complainants subsequent
to
enactment
of
the
Act,
thereby
subjecting
Respondents
to
provisions
of the
Act
as
alleged
in
the
instant
Complaint.
Kerr-McGee’s final contention is not well-taken.
CONCLUSION
As
established
by the
foregoing,
Ken-McGee’s Motion
to
Dismiss the Complaint
lacks
any basis
in
law.
Consequently,
Complainants request this Board to
deny the motion
and
enter
an
order finding the Complaint
to
be neither duplicitous nor frivolous,
and
to
set
this matter for
hearing.
B
Frederick S. Mueller
Daniel C.
Murray
Garrett L.
Boehm, Jr.
JOHNSON
&
BELL,
LTD.
Suite 4100
55
East Monroe Street
Chicago, Illinois
60603-5
803
Tel. (312) 372-0770
1208576
5
CERTIFICATE OF SERVICE
I, the undersigned, on oath, state that I have served on the date ofApril
~,
2005,
the
attached Complainants’ Memorandum in Opposition to
Kerr-McGee Chemical LUC’s Motion to
Dismiss the Complaint by Certified mail, upon the following persons:
Donald J. Moran
PEDERSEN & HOUFT
161 North Clark Street, Suite 3100
Chicago, Illinois 6060 1-3242
Attorneyfor River EastLLC and
Chicago Dock and Canal Trust
John T. Smith II
COVfNGTON & BTJRLING
1201 Pennsylvania Avenue N.W.
Washington, D.C.
20004-2401
Attorneyfor Kerr-McGee Chemical LLC
Subscribed to
and sworn before me
This Lay
of April, 2005.
Not~v~’
Public
My
commission expires:
55
East
Monroe Street, Suite 4100
Chicago, IL
60603
(312) 372-0770
~
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S’E41
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