BEFORE
THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND PIER CENTER LLC
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO.
as subrogee of
GRAND PIER CENTER LLC
Complainants,
RIVER EAST LLC
CHICAGO DOCK AND CANAL
TRUST
CHICAGO DOCKAND CANAL COMPANY
KERR-McGEE CHEMICAL LLC
Respondents.
RECEIVED
CLERK’S OFFICE
JUN
1
3 2O~
STATE OFILUNOIS
Pollution Control
Board
)
)
)
)
PCB 05-157
)
(Enforcement)
)
)
)
)
)
)
)
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 FILING
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, KERR-MCGEE
CHEMICAL LLC’S MOTION FOR LEAVE TO FILE A COUNTER-COMPLAINT and
COUNTER-COMPLAINT, copies ofwhich are served upon you along with this notice.
Kerr-McGee Chemical LLC
Michael P. Connelly
Garrett C. Carter
Connelly Roberts & McGivney LLC
OneNorth Franklin Street
Suite 1200
Chicago, Illinois
60606
Tele: (312) 251.9600
By:
~
ofits attorney~~
)
)
)
V.
I:\2470\040\Notice ofFiling—S. 06.10.05
RECEIVED
CLERK’S OFFICE
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL BOARD
JUN
132005
GRAND
PIER CENTER LLC
)
~
AMERICAN
INTERNATIONAL
)
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.
)
KERR-McGEE CHEMICAL LLC’S MOTION
FOR LEAVE TO
FILE A COUNTER-
COMPLAINT
Respondent Kerr-McGee Chemical LLC
(Kerr-McGee) respectfully asks the Illinois
Pollution Control
Board (Board) for permission to file a counter-complaint in the
above captioned
proceeding,
initiated by Grand Pier Center LLC
and American International Specialty Lines
Insurance
Co.
as subrogee of Grand Pier Center LLC (collectively,
Grand Pier).
As required by the Board’s procedural rules,
35
Ill. Adm.
Code 103.206(d), (e),
the attached counter-complaint sets forth a claim that arises out ofthe occurrences that are the
subject ofthe above captioned proceeding: thorium residues exposed to the environment during
construction for commercial development by Grand Pier in the Streeterville District of the City of
Chicago.
Respectfully submitted,
~~iI~hael
P. Co~celly
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 B.
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
2
CERTIFICATE OF SERVICE
I, Lynne Püdlo,
a non-attorney, being first sworn on
oath, depose
and
state that I
served
the
attached
Motion
for
Leave
to
File
a
Counter-Complaint
and
Counter-
Complaint
on
the
attorneys of record 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
Franidin Street, Chicago,
Illinois,
before
5:00
p.m.
on
June
13, 2005.
Subscribed and sworn to
before me June 13, 2005.
M/LiA~1IiQ~~A4~
Notary Pu
lic
~
~‘OFFICIALSEAL”
~
MICHELLE M. PAITERSON
~ ~4OTA~Y
PUBLiC
STATE OF
IWNOIS
~mm~s~on free
04/2&20Q8
I:\2470\040\pleadings\cos040405
RECEIVED
CLERK’S OFFICE
BEFORE
THE
ILLINOIS
POLLUTION CONTROL BOARD
JUN
132005
GRAND
PIER CENTER LLC
)
~~~lBoard
AMERICAN
INTERNATIONAL
)
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.
)
COUNTER-COMPLAINT
Kerr-McGee Chemical LLC
(Kerr-McGee) counterclaims against Grand Pier
Center LLC (Grand Pier)
and American International Specialty Lines Insurance Co.
(AISLI),
as
subrogee of Grand Pier (Counter-Complaint Respondents),
averring as follows:
1.
To the extent that the Board hasjurisdiction over the Complaint, the Board
has jurisdiction over
this Counter-Complaint pursuant to 35 IAC
103.200 and Sections 5(d), 31(d)
and 33(a) of the Act.
2.
In
1997,
Grand Pier acquired property in Chicago, Cook County,
Illinois
bounded by North Columbus Drive,
East Grand Avenue,
North St.
Clair Street and East Illinois
Street, which property, at time of acquisition by Grand Pier,
was paved and in use as a parking
lot.
This site
is generally denoted by the address 200
East Illinois Street.
3.
Before acquiring
this property, Grand Pier retained one or more
environmental consultants
to conduct environmental reviews that included the 200 East Illinois
Street site.
4.
This environmental review process indicated that a site immediately to
the
east of200 East Illinois
Street and on the other side of North Columbus
Drive at 316 East Illinois
Street was undergoing cleanup pursuant to
a 1996
unilateral administrative order
(UAO) issued by
the U.S.
Environmental Protection Agency,
pursuant to the Comprehensive Environmental
Response, Compensation,
and Liability Act (CERCLA),
42 U.S.C.
§
9601
et. seq.,
to address
contamination by
thorium resulting from the historical operations of the
Lindsay Light Co.
in this
area of Chicago.
5.
In April
1999,
Grand Pier’s environmental consultant offered
to conduct a
file review
to investigate the nature of the environmental concern for an additional cost.
Neither
Grand Pier
nor any consultant to
Grand Pier conducted a file search at the EPA to learn the
particulars of the then-ongoing cleanup activities.
6.
Grand Pier
knew or should have known that, until construction of North
Columbus Drive in the mid-1980s, the properties at 316
East Illinois Street and 200 East Illinois
Street were contiguous.
Moreover,
a file search at the EPA of the
then-ongoing cleanup would
have,revealed that characterization of the contamination pertaining
to the
316 East Illinois Street
site indicated that pockets of thorium residues extended beyond the Western property boundary
beneath sidewalks and North Columbus Drive.
7.
Although
Grand Pier and/or its consultants
and contractors,
conducted
subsurface borings at the 200 East Illinois Street site, none was addressed to the possibility of
thorium residues despite the fact that Grand Pier knew or should have know ofthe presence of
thorium residues and/or the possibility of the presence of thorium residues.
8.
Ray M.
Chin,
the principal behind Grand Pier and a trained engineer,
previously worked for Commonwealth Edison and was involved with one or more nuclear power
2
generating stations,
where he obtained familiarity with radionuclides and the potential human health
risks associated with them.
Ray M.
Chin knew or should have known of the presence of thorium
residues at the 200
East Illinois Street site.
9.
At the time Grand Pier acquired the property at 200 East Illinois
Street site,
it knew or should have known ofthe
presence of thorium residues at the site.
10.
The pavement covering the
200 East Illinois Street site acted as a shield to
prevent human exposure to the
“gamma radiation” associated with thorium residues.
In a
September
1999 Enforcement Confidential Addendum regarding paved areas adjacent to
the
Lindsay Light II Site, EPA determined that the radioactive material in the
soils was not water
soluble and thus did not present a water contamination risk and that
the shielding effects of the
asphalt, concrete, and overburden prevent the release of the radiation to
humans or the
environment.
EPA also
determined in the September
1999 Enforcement Confidential Addendum
that the radioactive materials would
be released to the environment if the shielding materials were
disturbed or if a person tunneled into the radioactive materials.
The September
1999 Enforcement
Confidential Addendum pertains
to the Action Memorandum accompanying an Administrative
Order on Consent regarding the Lindsay Light II Site.
11.
In January 2000,
Grand Pier began to
remove the pavement on the surface
of the 200 East Illinois Street site,
to excavate the site,
and to dispose of that material at the
Beverly Gravel Site, a quarry in Elgin,
Illinois.
Grand Pier undertook these actions to prepare for
construction of a commercial building despite the fact that Grand Pier knew or should have known
that its actions would cause a risk to human health and the environment from exposure to gamma
radiation.
3
12.
Only by Grand Pier’s removal of the pavement and excavation of the
site
for construction of a commercial development,
was the public and the environment exposed to the
risks of thorium.
Grand Pier undertook the removal of the pavement and excavation ofthe site for
its own economic benefit.
Kerr-McGee did
not stand to benefit economically from Grand Pier’s
commercial
development activities.
13.
In February 2000,
EPA directed cessation of these excavation activities
pending a survey to determine whether the excavation would expose
thorium residues.
After a
survey by EPA personnel indicated the presence of thorium residues,
EPA amended
a 1996
unilateral administrative order with respect
to the 316 East Illinois Street site to direct thorium
removal
activities
at the
200 East Illinois Street site by Grand Pier.
EPA also
directed the removal
of the thorium residues that Grand Pier had disposed of at the Beverly Gravel Site.
14.
In March 2000,
Kerr-McGee and Grand Pier
reached an agreement by
which both parties reserved all rights to
seek future reimbursement, but, to
enable prompt conduct
of removal
activities directed by EPA,
Kerr-McGee undertook to arrange transportation and
disposal of thorium residues to be excavated by Grand Pier’s contractor at the 200 East Illinois
Street site.
15.
As
a result of Grand Pier’s actions, Kerr-McGee has incurred approximately
$3.6 million of costs.
16.
Pursuant to a consent decree under
§
107 of CERCLA,
96
U.S.C.
§
9607,
entered in the United States District Court for the Northern District of Illinois in June 2004, Kerr-
McGee has reimbursed EPA approximately $130,000 for its costs of oversight and response with
respect to the 200 East Illinois
Street site.
4
17.
Grand Pier has not paid any share of these EPA costs or reimbursed Kerr-
McGee for any of the
costs incurred by Kerr-McGee.
COUNTER-COMPLAINT COUNT I:
415
ILCS
5/21(e)
18.
Kerr-McGee repeats and realleges the allegations of paragraphs of 1-17 of
its Counter-Complaint as if fully set
forth herein.
19.
The Act 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 the Act and ofregulations
and standards
thereunder.
415 ILCS 5/21(e).
20.
Grand Pier’s removal ofasphalt, concrete,
and overburden at the 200 East
Illinois Street site, the excavation of the site,
and the subsequent disposal of that material were
acts
of “disposal,” as that term is defined in 415 ILCS 5/3.185,
other than at a site or facility which
meets the requirements.of the Act
and of regulations and standards
thereunder.
PRAYER
FOR RELIEF
WHEREFORE,
Kerr-McGee prays for judgment against Grand Pier and AISLI as
follows:
A.
An order requiring Counter-Complaint Respondents to reimburse Kerr-
McGee for the $3.6 million in response costs that Kerr-McGee has incurred and the $130,000
Kerr-McGee reimbursed
to the United States related
to removal ofthorium at the 200 East Illinois
Street site, together with maximum lawfully allowed interest thereon;
B.
An order requiring Counter-Complaint Respondents to pay
the maximum
civil penalties provided for by the Act;
C.
Such other
and further relief as the Board may deemjust and proper.
5
