CLERK’S OFFICE
BEFORE THE ILLINOIS
MAY
172005
POLLUTION CONTROL BOARD
STATE OF ILUNOIS
Pollution Control Board
GRAND PIER CENTER LL C
)
AMERICANINTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
)
as subrogee of
Grand Pier CenterLLC
)
)
Complainants
)
)
v.
)
PCBO5-157
)
(Enforcement)
RIVER EASTLLC
)
CHICAGO DOCK AND CANAL
TRUST
)
CHICAGO DOCK AND CANAL
COMPANY
)
KERR-MCGEE
CHEMICAL LLC
)
)
Respondents
)
COMPLAINANTS’ OPPOSITION TO MOTION TO
FILE REPLY,
OR ALTERNATIVELY, MOTION TO FILE
SURREPLY
Complainants
Grand
Pier
Center
LLC
and
American
International
Specialty
Lines
Insurance
Co.
(collectively
“Grand
Pier”)
respectfully oppose
Kerr-McGee’s
motion
to
file
a
Reply.
However, should the Board allow Kerr-McGee’s Reply, Grand Pier requests leave to
file
the Surreply tendered herewith,
instanter.
The Reply tendered by Kerr-McGee mischaracterizes
Grand Pier’s Complaint filed with
the
Board,
it mischaracterizes
Grand
Pier’s
Second
Amended
Complaint
pending
before
the
federal
district
court,
and
it mischaracterizes Grand Pier’s position taken
in opposition
to Kerr-
McGee’s motion to dismiss.
WHEREFORE,
Grand
Pier
prays
Kerr-McGee’s motion
to
file a
Reply be
denied,
or
alternatively, leave be granted
to Grand Pier to file a Surreply,
tendered herewith.
Respectfully submitted this
17th day ofMay 2005
GRAND
PIER CENTER LLC
AMERICAN
By
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
TY
LINES
INSURANCE Co.
2
CERTIFICATE OF SERVICE
I, the undersigned, on oath, state that I have served on the date ofMay
LIZ
2005,
the
attached
Complainants’
Opposition to Motion
to file Reply,
or
alternatively, Motion
to file
Surreply
by Certified mail, upon the following persons:
John T. Smith II
COVINGTON
&
BuRLING
1201
Pennsylvania Ave. N.W.
Washington, D.C.
20004
Subscri~~l
to
and sworn before me
This/?
day of~~y,
2005.
Notary Public
My commission expires:
~.
~
~
Michael Connelly
CONNELLY,
ROBERTS
&
MCGIVNEY LLC
Suite
1200
One North Franklin Street
Chicago, IL 60606
“OFFICIAL
,c~4l,,
~
~
CYNTH~
LE~
rEMPEL
~
~NOTARY
~U3L~C
STATE
OF iLUNOIS ~
~My Cornrniss~onExpn~e~
10/20/2005 ~
Street, Suite 4100
Chicago, IL 60603
(312) 372-0770
RECE~V~
CLERK’S OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
MAY
17
2005
GRANDPIER CENTER LLC
)
AMERICANINTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
)
as subrogee of
Grand Pier CenterLLC
)
)
Complainants
)
)
v.
)
PCBO5-157
)
(Enforcement)
RIVER EASTLLC
)
CHICAGO DOCK AND CANAL
TRUST
)
CHICAGO DOCK AND CANAL
COMPANY
)
KERR-MCGEE CHEMICAL LLC
)
)
Respondents
)
COMPLAINANTS’
SURREPLY
IN
OPPOSITION TO MOTION TO DISMISS
Complainants
Grand
Pier
Center
LLC
and
American
International
Specialty
Lines
Insurance
Co.
(collectively “Grand
Pier”)
submit
this
Surreply
in
opposition
to
Kerr-McGee’s
motion to dismiss.
I.
Board Precedent
Shows
This
Complaint Is
Not Duplicative.
In an attempt
to
salvage its
argument that the complaint before the Board is
duplicative of
the
Second
Amended
Complaint
pending
in
federal
court,
Kerr-McGee
points
to
a
single
paragraph in the
13-page
Second Amended
Complaint,
but
omits to point out to
the Board
that
the
cited
paragraph is part of a supplemental state law
claim under the Illinois
Joint
Tortfeasors
Contribution
Act,
740 ILCS
100
/
2.
See Kerr-McGee’s Ex.
A,
pages
11-12.
Simply put,
that
the
same
acts committed by
Kerr-McGee
may
give
rise
to
two
separate and
distinct
claims
—
one under the Illinois
Contribution Act, and the otherunder the Illinois Environmental Protection
Act
—
perforce establishes the claims are not duplicative.
As already demonstrated in Grand Pier’s Memorandum in Opposition, the federal
district
courts
have
refused
to
entertain
the
type
of
TEPA
claims
which
Grand
Pier has
pled
in
its
Complaint before the Board,
and
Kerr-McGee
does not
assert
the
Board would
accept
a claim
pled under the Illinois Contribution Act.
Clearly,
the claims are separate,
and
neither does Kerr-
McGee
reply to
Grand Pier’s
argument
at page
2 of Grand Pier’s
Memorandum
in
Opposition
that
the
law
does
not require
Complainants
to
choose
between asserting
their rights
in
federal
court or before the Board, when the law plainly provides that Complainants possess JEPA claims
the federal court will not
accept, and Complainants also possess
Illinois
Contribution Act claims
that
this
Board
would
not
accept.
Thus,
to
buy
into
Kerr-McGee’s
position
would
be
to
immediately foreclose one or another of the statutory rights granted to
Grand Pier by the Illinois
legislature
which
passed these
two
separate
regimes.
Kerr-McGee
cites
no
authority
for its
position that Grand Pier must be put to
an election of its separate rights provided to
it by law.
The
American
Heritage
Dictionary
of
the
English
Language,
Fourth
Edition
(2000),
defines duplicate
as “an identical copy”
and
“one that
corresponds exactly to
another.”
For the
very reason that Grand Pier’s claims under the two statutes
(IEPAct and Contribution
Act)
must
be brought in
separate fora,
a point Kerr-McGee does not dispute, perforce shows the two
claims
are not
“identical,” nor do they “correspond exactly,” and
hence, are not duplicative.
Kerr-McGee also
argues that
because Grand Pier has not asked the Board to
impose civil
penalties
on
it, the
Complaint is
duplicative of the Second
Amended
Complaint.
If this
be
the
determinative factor on
whether the
two
complaints
are duplicative,
then
Grand Pier will
seek
civil penalties in an Amended Complaint before the Board.
2
II.
The Board
Has Authority to Require Reimbursement of Clean-Up Costs.
Kerr-McGee in its Reply apparently drops its
earlier challenge to
the Board’s authority to
order the reimbursement of clean-up costs, but says now that this is not
an “appropriate” case for
the Board
to hear.
Reply p. 4.
While Grand Pier is confident the Board will not
now graft on to
its
review
process
a
new
“appropriateness”
standard
(whatever
that
may
mean),
Grand
Pier
believes
that
radioactive
thorium-contaminated
soil
and
groundwater in
Chicago’s Streeterville
neighborhood is “appropriate” for redress in
all fora that
are available to
those who are damaged
or
injured thereby, now
and
in
the
future.
Kerr-McGee
also
trots
out
the
familiar parade
of
horribles,
opining that if the Board
“were
to
accept
Grand Pier’s
theory of the merits,
it may
open itself to
a wide array ofnew
private-party petitions seeking overlapping relief on matters..
addressed by CERCLA.”
Reply p.
3.
Kerr-McGee cites to absolutely nothing in
support ofthis
utterly self-serving averment.
III.
The Act Governs
the Claims.
Kerr-McGee
in
its
Reply
wrongly
states
Grand
Pier
“is
not
seeking
retroactive
application of the Act.”
Reply p.
3.
On the contrary,
Grand Pier
asserts
all its
rights under the
Act,
including
its retroactive application
discussed in the 2004
case of
State Oil Co.
v.
Pollution
Control
Board,
822
N.E.2d
876
(2d
Dist.
2004),
which
Grand
Pier
cited
at
page
4
of
its
Memorandum in
Opposition,
which
Kerr-McGee
omits
to
even
mention
in
its
Reply.
As
for
Kerr-McGee’s
“acts,”
the
simple
truth
is
Kerr-McGee’s
predecessors
dumped
the radioactive
material
in
an
urban
area, and
Grand Pier
thereafter became entangled with
the property,
with
Grand Pier inculTing costs
of removal of Kerr-McGee’s waste, for which
Grand Pier now seeks
cost recovery.
The Complaint alleges
not
only that
Kerr-McGee dumped the waste,
but
that it
failed to
remove the waste when removal began in the year 2000.
3
For
all
the
foregoing
reasons,
Kerr-McGee’s
Motion
to
Dismiss
is
without
merit.
Complainants request the Board
to
deny
the motion,
finding the
Complaint neither
duplicitous
nor frivolous.
Alternatively,
Grand Pier requests leave to file an Amended Complaint, and prays
for such other relief as is just.
Respectfully submitted this
17th day ofMay 2005
GRAND PIER CENTER LLC
AMERICAN INTERNATIONAL
SPECIALTY
LINES
INSURANCE Co.
By:
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
4
CERTIFICATE OF SERVICE
I, the undersigned, on oath, state that I have served on the date of May
/1,
2005,
the
attached
Complainants’
Surreply
in
Opposition to Motion
to Dismiss
by Certified mail,
upon
the following persons:
John T.
Smith II
COVINGTON & BURLING
1201
Pennsylvania Ave. N.W.
Washington, D.C.
20004
Subscribed to and sworn before me
This,~9~d~ay
of
~
2005.
Not~yPublic
My commission expires:
Michael Connelly
CONNELLY,
ROBERTS
&
MCGIVNEY LLC
Suite
1200
One North Franklin Street
55
Ea~t
M6nroe Street, Suite 4100
Chicago, IL 60603
(312) 372-0770
“OFF!CIA~~j~
CYNTHIA
LEA
TEMPEL
NOTARY PUBLIC; STATE OF ILLINOIS
M
Cornmisso~
E~~r&;
10/20/2005 ~
LTD.
