RECE~VED

CLERK’S OFF!CE

BEFORE

THE ILLINOIS

POLLUTION CONTROL BOARD

JUL

05

2005

GRAND PIER CENTER LLC

)

pj~lBoard

AMERICAN INTERNATIONAL

)

SPECIALTY LINES INSURANCE CO.

)

as subrogee of

GRAND

PIER CENTER LLC

)

)

Complainants,

)

PCB 05-1

57

)

(Citizens Enforcement

—

Land)

v.

)

)

RIVER EAST LLC

)

CHICAGO DOCK AND CANAL TRUST

)

CHICAGO DOCK AND CANAL COMPANY

)

KERR-McGEE CHEMICAL LLC

)

)

Respondents.

)

PLAINTIFF’S

MOTION TO DISMISS AFFIRMATIVE DEFENSES

Complainants

Grand

Pier

LLC

and

American

International

Specialty

Lines

Insurance

Co., move, pursuant to

Section

2-615 of the Illinois

Code of Civil

Procedure,

735

ILCS

5/2-615,

for

an

order

dismissing,

with

prejudice,

Defendant

Kerr-McGee’s

affirmative defenses to Complainants’ Complaint.

Introduction

On

February

25,

2005,

Complainants

filed

a

three-count

Complaint

against

Defendants

seeking

reimbursement

of

clean-up

costs

at

the

RV3

Site

in

Chicago

according to

Sections

12(a),

12(d), and

21(e)

of the Environmental

Protection

Act

(415

ILCS

5/1

et seq.).

Respondent Kerr-McGee answered the Complaint on June

13,

2005,

and

asserted

enumerated

affirmative

defenses.

Service of the Answer

and

affirmative

defenses was received on June 16, 2005.

---

Standard

The test for whether a defense is affirmative and

must be pled by the defendant

is

whether the defense gives color to the opposing party’s claim

and

then asserts new matter

by which

the apparent

right

is

defeated.

Ferris

Elevator

Co.,

Inc.

v.

Neffco,

Inc.,

285

Ill.App.3d

350,

354,

674

N.E.2d

449,

452

(3d

Dist.

1996);

Condon

v.

American

Telephone and

Telegraph

Co.,

Inc.,

210

Ill.App.3d

701,

709,

569

N.E.2d

518,

523

(2d

Dist.

1991).

In

other

words,

an

affirmative

defense

confesses

or

admits

the

cause

of action

alleged but seeks to

avoid the cause ofaction by asserting new matter not contained in the

Complaint or Answer.

The issue raised by an affirmative defense must be one outside the

four corners of the Complaint.

See

Corbett v.

Devon Bank,

12

Ill.App.3d

559,

569-70,

299

N.E.2d

521,

527

(1st

Dist.

1973).

Finally,

the

facts

establishing

an

affirmative

defense

must

be

pled

with

the

same

degree

of

specificity

required

by

a

plaintiff

to

establish

a

cause of action.

International Ins.

Co.

v.

Sargent

&

Lundy,

242

Ill.App.3d

614,

609 N.E.2d 842,

853

(1st

Dist.

1993).

ARGUMENT

I..

KERR-MCGEE’S FIRST

AFFIRMATIVE DEFENSE

SHOULD

BE

DISMISSED:

THIS

BOARD

HAS

JURISDICTION

OVER

COMPLAINT.

Kerr-McGee’s first asserted affirmative defense alleges that “the

Board does not

have jurisdiction

to

award

cleanup

costs

to

a

private party

for

violations

of

Sections

21(e),

12(a), and

12(d) ofthe Illinois Environmental Protection Act.”

2

---

It is now the law ofthe case that this

Board does indeed have the jurisdiction and

authority to

award cleanup costs to a private party for violations ofthe

Act.

On May 19,

2005, the Board issued an order in this case holding the following:

“Since

1994,

the

Board has consistently held

that

pursuant

to

the broad

language of Section

33

of the Act (415

ILCS

5/33

(2002)), the Board has

the authority to

award cleanup

costs to private parties for a violation ofthe

Act..

.

.

The

Board

finds

that

the Board

does have the

authority to

grant

cost recovery and a cease and desist order.”

Consequently,

it

is

the law

of the

case that

this

Board has

the jurisdiction and

authority to

award

a private party cleanup

costs

for violation of the

Act.

Kerr-McGee’s

first

affirmative

defense should

be

dismissed

with prejudice.

See

Weiss

v.

Waterhouse

Securities,

208

Ill.2d

439,

448,

804

N.E.2d

536,

541

(2004) (law

of the

case doctrine

precludes relitigation of issue previously decided).

II.

KERR-MCGEE’S

SECOND,

THIRD,

AND

FOURTH

AFFIRMATIVE

DEFENSES

SHOULD

BE

FAILURE

TO

STATE

A

CLAIM

IS

AN

INVALID

AFFIRMATIVE DEFENSE.

Kerr-McGee’s second,

third, and fourth affirmative

defenses

all allege “failure to

state a claim” as to

Plaintiffs’

first,

second,

and third counts ofthe Complaint.

However,

if the pleading does not admit

the apparent

right to

the

claim and instead merely attacks

the sufficiency of the claim, it is not a valid affirmative defense.

Worner Agency, Inc.,

v.

Doyle,

121

Ill.App.3d 219,

222-23, 459

N.E.2d 633

(4th

Dist.

1984).

By contending that

the Complaint fails to

state a claim for which relief can be granted, Kerr-McGee fails to

admit the apparent right to

the claim.

If Kerr-McGee wishes to

attack the sufficiency of

the

claim, it

should

do

so

properly, through

a

motion

to

strike

or dismiss,

rather

than

through

the

improperly

pled

so-called

affirmative

defense

of failure

to

state a

claim.

3

---

Kerr-McGee’s second,

third,

and

fourth

affirmative

defenses

should

be

dismissed

with

prejudice.

III.

KERR-MCGEE’S FIFTH, SIXTH, AND SEVENTH AFFIRMATIVE

DEFENSES

SHOULD

BE

DISMISSED

FOR

FAILURE

ALLEGE SUFFICIENT FACTS.

Kerr-McGee’s

fifth

affirmative

defense

alleges

that

its

liability

“should

be

proportionally

reduced

because

Complainants’

own

fault

contributed

to”

the

contamination of the

Site.

The sixth

affirmative

defense alleges in

a conclusory maimer

that

Complainants’

claims are barred

due to

acts of third parties or due

to

events out of

Respondent’s control.

The seventh affirmative defense asserts Complainants “knowingly

and

voluntarily

assumed

the

risk”

of incurring damages

for

which

Complainants

now

seek

recovery.

Kerr-McGee has failed to

allege

sufficient

facts to

support these alleged

affirmative

defenses

which

amount

to

nothing

more

than

unsubstantiated

legal

conclusions.

As

previously stated, the

facts establishing

an

affirmative

defense must

be pled

with the same degree of specificity required by

a plaintiff to

establish a cause of action.

Sargent

&

Lundy,

242

Ill.App.3d

614,

609

N.E.2d

at

853.

Here,

Kerr-McGee

has

completely

omitted

any

facts

to

support

its

sundry

legal

conclusions

including

that

Complainants may be

proportionally

liable

for the cleanup

costs

at

the

Site,

actions of

third parties bars Complainants’

cause of action,

and

Complainants voluntarily assumed

the

risk

of damages

at

the

Site.

Consequently,

these

affirmative

defenses

should

be

dismissed.

4

---

IV.

KERR-MCGEE’S

EIGHTH

AFFIRMATIVE

DEFENSE

SHOULD

BE

DISMISSED

AS

THE

AFFIRMATIVE DEFENSE IS

INSUFFICIENT.

Kerr-McGee’s

Eighth

Affirmative

Defense

alleges

Complainants’

claims

are

preempted by federal

law.

The scope ofKerr-McGee’s allegation is unclear.

Due to the

vague and

ambiguous nature of the purported affirmative

defense, it should be summarily

dismissed.

In

any

event, taken

generally, Kerr-McGee

may be

arguing

that

the

entire

Environmental

Protection

Act

is

preempted

by

federal

law

(Kerr-McGee

does

not

indicate what

federal

law

in

particular).

Taken narrowly,

Kerr-McGee may be

arguing

that Sections

12(a),

(d), and

2 1(e) of the Act are preempted by

federal law

(again, Kerr-

McGee does not indicate what federal law in

particular).

In either instance, Kerr-McGee

is mistaken and this purported affirmative defense should be dismissed with prejudice.

There is

absolutely no precedent indicating that Sections

12(a),

(d), and

21(e) are

preempted

by

any

federal

law.

“Implied

field preemption occurs

where

Congress has

implemented a comprehensive regulatory

scheme in

a particular area, thus

removing the

entire field from

the state realm.”

Dickeyv.

6’onnaught Labs., Inc.,

334 Ill.App.3d

1048,

1051, 777 N.E.2d 974, 977 (3d Dist. 2002).

The Northern District of Illinois federal district

court has previously addressed the

allegations of preemption with regard

to

private

cost

recovery under

the Environmental

Protection

Act.

See People

v.

Northbrook

Sports

Club,

1999

WL

1102740

(N.D.

Ill.

Nov.

24,

1999) (attached

as

Exhibit

1).

In that case, the federal district court concluded

that CERCLA does not preempt the cost recovery provision in the Act.

Specifically,

the

court stated:

“Environmental

law

.

.

.

remains an area ofat least equal importance to

the

state, and

CERCLA

expressly left an

avenue open to

states to

enact their own legislation

5

---

and

stated

Congressional

intent

not

to

supersede

such

actions.”

Id.

at

*4~ The

court

concluded

by holding:

“After a

careful reading of the statutory

language of CERCLA,

including

the

cost

recovery

provisions,

I

conclude

that

Congress

did

not

intend

to

preempt Illinois

environmental

legislation providing

for a private

cost

recovery action.”

Id.

V.

KERR-MCGEE’S NINTH AFFIRMATIVE DEFENSE

SHOULD BE

DISMISSED

AS

CONTRIBUTION

PROTECTION

CERCLA

IS

INAPPLICABLE

TO

PLAINTIFFS’

PENDING

CLAIMS.

Kerr-McGee

claims

that

it

is

entitled

to

contribution

protection

under

Section

1 13(f)(2) of CERCLA.

Again,

due

to

Kerr-McGee’s failure

to

plead with

particularity

any facts in support of its

asserted affirmative defense,

the affirmative

defense should be

dismissed as factually insufficient.

Furthermore,

there

has

been

no

settlement

at

the

RV3

Site

concerning

any

performance of any cleanup.

Although a settlement has been previously reached between

Kerr-McGee

and

the

United

States

Environmental

Protection

Agency

for

USEPA’s

oversight

costs,

that

settlement

includes

specific

language

limiting

contribution

protection.

See

Exhibit

2

(June

8,

2004

Consent

Decree).

Specifically,

the

Consent

Decree entered into between the United States ofAmerica and Kerr-McGee

defines “Past

Response Costs” as:

“all

costs,

including but

not

limited

to direct

and

indirect

costs,

that

EPA

has

paid

at

or

in

connection

with

Operable

Units

00,

01,

02,

and

03

through

December

31,

2003,

and

all

costs,

including

but

not

limited

to

direct

and

indirect

costs,

that DOJ

on

behalf of EPA, has paid

at or in

connection with DJ Numbers 90-11-3-1313, 90-11-3-1313/1, and 90-11-3-

1313/2

through

May 29,

20034,

plus

accrued

Interest

on

all

such

costs

through those

dates.”

Exhibit 2, pg. 6-7.

6

---

Moreover, the Consent Decree limits contributionprotection as follows:

“The Parties

agree,

and, by entering this

Consent Decree this

Court

finds,

that

Settling Defendant

is

entitled,

as of the date of entry of this

Consent

Decree, to

protection from

contribution actions or

claims

as provided by

Section

113(f)(2)

of

CERCLA,

42

U.S.C.

§

9613(f)(2),

for

“matters

addressed”

in

this

Consent

Decree.

The

“matters

addressed”

in

this

Consent Decree are Past Response Costs.”

Id.,pg.

13.

In

this

pending cause,

Complainants

do

not

seek

reimbursement of any

costs

within the “matters

addressed” by the

Consent Decree.

Consequently,

the

ninth affirmative defense is frivolous and should be dismissed with prejudice.

VI.

KERR-MCGEE’S TENTH AFFIRMATIVE

DEFENSE

SHOULD BE

DISMISSED FOR FAILURE TO ALLEGE

ADEQUATE

FACTS.

Kerr-McGee’ s final affirmative

defense seeks reduction of Kerr-McGee’s liability

for Kerr-McGee’s costs, services,

or benefits incurred, or agreed to

incur, that

will cause

an

increase in

the value

of Complainants’ properties.

This

affirmative

defense is

fatally

flawed:

Complainants no longer own the RV3

Site.

Consequently,

any costs, services, or

benefits now or in

the future that Kerr-McGee will not enhance the value ofthe property

to

the

advantage

of Complainants.

Furthermore,

once again Kerr-McGee has failed

to

allege

adequate

facts

to

support

its

purported

affirmative

defense.

For

these reasons,

Kerr-McGee’s final affirmative defense should be dismissed.

7

---

CONCLUSION

As

Kerr-McGee’s

affirmative

defenses

as

pled

are

not

proper

affirmative

defenses,

fail

to

allege

adequate

facts,

or

are

legally

insufficient,

each

and

every

affirmative defense should be dismissed.

July 5,

2005

Respectfully submitted

GRAND PIER CENTER LLC and

AMERICAN INTERNATIONAL

SPECIALITY LINES INSURANCE CO.

Frederick S. Mueller

Daniel

C. Murray

Garrett L. Boehm, Jr.

Johnson & Bell, Ltd.

55

E.

Monroe St.

Suite 4100

Chicago, IL 60603

(312) 372-0770

attorneys

8

---

Westlaw

Not Reported in F.Supp.2d

1999 WL 1102740 (N.D.Ill.)

(Cite

as:

1999

WL 1102740

(N.D.lll.))

C

Motions, Pleadings and Filings

Only the Westlaw citation is currently available.

United

States District Court, ND. Illinois, Eastern

Division.

PEOPLE of the

State of Illinois

ex

rel. James

E. Ryan

Plaintiff

v.

NORTHBROOK SPORTS CLUB Defendant.

No. 99 C 4038.

Nov. 24, 1999.

Gerald

T.

Karr,

Assistant

Attorney

General,

Chicago, IL, for Plaintiff.

Frederick

S. Mueller,

Johnson &Bell,

Ltd., Chicago,

IL, for Defendant.

MEMORANDUM OPINIONAND

ORDER

BUCKLO,J.

*1

The State

of Illinois

moves

to remand this case

to

Illinois

state

court

based

on

lack

of

subject

matter

jurisdiction.

Defendant

objects,

claiming

that

the

plaintiffs

state

law claim is

completely preempted

by

federal law and, as such, subject matter jurisdiction is

proper

in

federal

court.

Because

I

conclude

that

Congress

did

not intend

to completely preempt state

legislation

in

environmental

cost

recovery

actions,

the plaintiffs

motion to remand is granted.

The State of Illinois

filed

this action on May 4,

1999,

in

the

Circuit

Court

of

Cook

County,

Illinois,

pursuant to the

Illinois Environmental Protection Act,

415

ILCS 5/22.2(f), in order to recover costs

incurred

by

the

Illinois

Department

of

Transportation

(“IDOT”)

to

remediate

the

contaminated

property

formerly owned by

the

defendant Northbrook Sports

Club

(“Northbrook”).

The

State

alleges

that

Northbrook

owned

a

trap

and

skeet

shooting

operation

which

contaminated

the

property

with

hazardous levels of lead.

On

August 9,

1999,

the

defendant removed the

case

to federal court pursuant to 28 U.S.C.

~

1441

on the

grounds

that

this

court

has

exclusive

original

jurisdiction

pursuant

to

the

Comprehensive

Environmental

Response,

Compensation,

and

Liability Act of

1980 and

its amendments,

42

U.S.C.

~

9601

et seq.

(“CERCLA”).

II.

Under 28

U.S.C.

~

1441,

a defendant may

remove

an

action

from

state

court

to

federal

court

if

the

federal

court

would

have

had

jurisdiction

over

the

lawsuit as originally filed by the plaintiff. The burden

of establishing

federal jurisdiction

rests

on

the

party

seeking

to

preserve

removal.

Show

v.

Dow Brands,

Inc.,

994 F.2d 364.

366

(7th Cir.1993).

Courts should

interpret

the

removal

statute

narrowly

and

presume

that

the plaintiff may choose his

or her forum.

Doe

i’.

Allied-Signal,

Inc.,

985

F.2d

908,

911

(7th

Cir.1993).

Any doubts regarding jurisdiction should be resolved

in favor

of remanding the

action

to state

court.

Jones

v. General Tire & Rubber Co.,

541

F.2d 660,664 (7th

Cir. 1976).

Ordinarily,

federal

question

jurisdiction

is

determined “by examining the plaintiffs

well-pleaded

complaint, for ‘it

is

long-settled

law

that

a cause of

action

arises

under

federal

law

only

when

the

plaintiffs

well-pleaded

complaint

raises

issues

of

federal law.”

‘Rice

v. Panchal,

65

F.3d 637,

639

(7th

Cir.

1995)

(quoting

Metropolitan

Life

Ins.

C’o.

v.

Taylor,

481

U.S.

58,

63,

107

S.Ct.

1542,

95

L.Ed.2d

55

(1987)).

However,

“the

Supreme

Court

has

fashioned an

exception to

this

rule

where Congress

has

completely preempted

a given area of state

law.”

Lister

v

Stark,

890

F.2d

941,

943

(7th

Cir.l989)

accord Avco

coip.

v. Aero Lodge

No.

735,

390 U.S.

557,

88

S.Ct.

1235,

20 L.Ed.2d

126

(1968)

(state law

claims

within

the

scope

of

§

301

of

the

Labor

Management

Relations

Act

were

removable

to

federal

court).

This

jurisdictional

doctrine

provides

that

“to

the

extent

that

Congress

has

displaced

a

plaintiffs

state

law

claim,

that

intent

informs

the

well-pleaded complaint rule,

and

a plaintiffs

attempt

to

utilize

the

displaced

state

law

is

properly

‘recharacterized’

as

a complaint

arising

under federal

law.”

Rice,

65

F.3d

at

640

n.

2

(citing

Taylor,

481

U.S.

at

64).

Federal

subject

matter

jurisdiction

therefore

exists if the

complaint

concerns

an area

of

law

“completely preempted”

by

federal law,

even if

the

complaint

does

not

state

a

federal

basis

of

jurisdiction.

Rice,

65

F.3d

at 642~

Jass

v.

Prudential

Health

care

Plan,

Inc.,

88

F.3d

1482,

1487

(7th

Page

1

©

2005

ThomsonlWest.

No

Claimto Orig. U.S.

Govt. Works.

---

Page 2

Not Reported in F.Supp.2d

1999 WL 1102740

(N.D.Ill.)

(Cite

as:

1999 WL 1102740 (N.D.Ill.))

Cir. 1996).

*2

On

the

other

hand,

the

existence

of

a

federal

question “in a defensive argument does not overcome

the paramount policies embodied

in the

well-pleaded

complaint

rule--that

the plaintiff is

the master of the

complaint,

that

a

federal question must appear on the

face

of the

complaint, and that

the

plaintiff may, by

eschewing

claims

based

on

federal

law,

choose

to

have

the cause

heard

in state

court.”

Cateipillar inc.

v.

Williams,

482

U.S.

386, 398-99,

107

S.Ct.

2425,

96

L.Ed.2d 318

(1987).

Thus, federal preemption that

merely

serves as

a defense to

a

state

law action,

i.e.

“conflict

preemption,”

cannot

alone

confer

federal

question jurisdiction.

Franchise

Tax

Bd.

of State

of

cal.

v.

construction

Laborers

Vacation

Trust

for

Southern

cal..

463

U.S.

1,

9-12,

25-27,

103

S.Ct.

2841,

77

L.Ed.2d

420

(1983);

Lister

i~

Stark,

890

F.2d 941, 943

& n. 1(7th

Cir.1989),

cert. denied,

498

U.S.

lOll,

111

S.Ct.

579,

112

L.Ed.2d

584

(1990).

Thus

the

defendant

cannot

remove

to

federal

court

simply

by

asserting

a

federal

question

in

his

responsive pleading.

Otherwise, the plaintiffs

choice

of law and forum would

be illusory.

III.

Analysis

This

decision whether

to

remand

this

case

to

state

court

turns

on

whether

CERCLA

completely

preempts

the

cost

recovery provision

in

the

Illinois

Environmental Protection

Act.

Since

the

parties

are

not diverse,

I

can only hear this case based on

federal

question

subject

matter

jurisdiction.

The

State

of

Illinois makes no

federal law claims

on

the face of its

well-pleaded

complaint,

which

seeks

recovery

only

under the Illinois

Act. However, the

defendant argues

that the Illinois

statute

under which

the plaintiff seeks

recovery is completely preempted

because it fails

to

meet

the

minimum

standard

for

cost

recovery

established under

the

federal

environmental

statutes

of CERCLA. Therefore,

the

defendant

contends that

the

complaint

should

be

recharacterized

as

a

CERCLA claim over which

the

district

courts of the

United States have exclusivejurisdiction.

Section

1 07(a)(4)(A) of CERCLA allows

any person

to recover from

“responsible”

persons any response

costs,

including costs

of removal or remedial action,

incurred by

them

as a result of a release or escape of

hazardous

substances

into

the

environment.

Section

22.2(f) of the

Illinois Environmental Protection

Act,

415

ILCS

5/22.2(f)

(1996)

employs

nearly identical

language

and

similarly

provides

that

a

list

of

enumerated

responsible

persons

“shall

be

liable

for

all

costs

of removal

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.”

On

their

face,

the

CERCLA

and

Illinois

cost

recovery

provisions

are

very

similar--indeed,

the

Illinois

statute

was

patterned

after

CERCLA.

The

defendants

argue

that

there

is

one

key

difference

which

demands

complete

preemption

of the

statute

under which the

State

of Illinois

seeks

recovery: the

additional

language

in

CERCLA’s

§

1 07(a)(4)(A)

which provides liability

for

“all

costs

of removal

or

remedial

action

incurred

by

the

United

States

Government

or

a

State

or

an

Indian

tribe

not

inconsistent

with

the

national

contingency

plan”

(“NCP”). Fromthe

lack of corresponding language

in

the

state

statute,

the

defendants

assert

that

state law

does not meet the so-called CERCLA floor because it

eliminates

the

NCP

requirements

for

cleanup

and

recovery.

FFNI 1

FN1.

I

am

dubious

about

the

defendant’s

concern about meeting

the

“CERCLA floor”

and

so

preventing

the

quality

of

environmental

cleanup

from

being

compromised

by

state

law.

It

would

be

a

rare situation indeed when

a polluter desires

to

be

subject

to

a

more

stringent

law.

I

suspect

the

defendant

is

more

likely

concerned

about

being

forced to

reimburse

the

state

for

additional

costs

than

it

might

have had to

do

under CERCLA. This result

is

exactly

what

Congress

anticipated

and

intended to promote by its savings clause.

*3

As

a preliminary matter,

upon

a closer review of

the

Illinois

Act,

it is not clear

that

the

statutes

differ

in

any

material

respect.

Section

§

22.2

expressly

provides

defendants

a

defense

for

compliance

with

the

NCP

or

the

directives

of

federal

laws

and

officials.

See

415

ILSC

5/22.2(j)(2),

(3).

Additionally,

the

state legislature expressed

its intent

not

to venture

beneath

the

so-called

CERCLA

floor

by

declaring

that

“it

would

be

inappropriate for

the

State

of

Illinois

to

adopt

a

hazardous

waste

management

program

that

is

less

stringent

than

or

conflicts

with

federal

law.”

415

ILCS

5/20(a)6

(1998).

Therefore,

it is

likely that

the

statute,

when

applied,

will

have

identical

results

to

its

CERCLA

cost recovery counterpart.

In

any

event,

it

is

premature

to

gauge

conflict

preemption

at

this juncture.

As

the

Seventh

Circuit

has

noted,

the

“complete

preemption

doctrine”

is

actually

a

misnomer

because

it

is

not

a

preemption

doctrine

but,

rather,

a

federal jurisdiction

doctrine.

©

2005

ThomsonlWest. No Claim to Orig. U.S. Govt. Works.

---

Not Reported in F.Supp.2d

1999

WL 1102740 (N.D.Ill.)

(Cite as:

1999

WL 1102740

(N.D.Ill.))

Jass

i’

Prudential

Health

Care

Plan.,

Inc.,

88

F.3d

1482,

1486-87

(7th

Cir.1996).

The

real

issue

is

not

whether

CERCLA

will preempt

state

law

should

a

direct

conflict

between

the

two

arise,

but

whether

Congress

intended

that

CERCLA

so

completely

cover

the

field

of

environmental

legislation

that

it

completely

preempts

state

law

such

that

no

state

claim can evenbe pled.

Whether

a

state

law

is

completely

preempted

is

a

matter

of

Congressional

intent,

as

gleaned

through

express

language

and

statutory

structure.

CERCLA

does

not expressly

preempt state

law

or occupy

the

field

of

environmental

contamination.

See,

e.g.,

Bedford

Affiliates

v.

Sills,

156

F.3d

416,

426

(2d

Cir.1998).

In

fact,

CERCLA

section

107(e)

clearly

preserves

some

state

law

causes

of

action

for

indemnity.

CERCLA

sections

114(a),

302(d)

and

106(a)

support

the

proposition

that

CERCLA

does

not

presumptively

preempt

state

or

local

law.

For

example,

CERCLA provides

at 42

U.S.C. ~

96 14(a):

Nothing

in

this

Act

shall

be

construed

or

interpreted

as preempting any State

from imposing

any

additional

liability

or

requirements

with

respect

to

the

release

of

hazardous

substances

within such State.

Section 96 14(b) also provides:

Any

person

who

receives

compensation

for

removal

costs

or

damages

or

claims

pursuant

to

this

Act

shall

be

precluded

from

recovering

compensation

for

the

same

removal

costs

or

damages

or

claims

pursuant to

any other

State

or

Federal

law.

Any

person

who

receives

compensation

for

removal

costs

or

damages

or

claims

pursuant

to

any other Federal or

State

law

shall be precluded from receiving compensation for

•

the

same

removal

costs

or

damages

or

claims

as

provided in this Act.

Thus,

CERCLA

encourages

state

relief

and

only

prohibits

compensatory

recovery

for

the

same

response

costs

under

both

CERCLA

and

state

or

other federal laws. In

this

case, the

State’s restitution

claim

is

not

duplicative

of

a

CERCLA private

cost

recovery cause of action since none is presented.

*4

The

ERISA

cases

cited

by

the

defendant

are

inapposite.

Unlike

CERCLA,

ERISA

intended

to

“occupy”

its

field

and

several

provisions

expressly

state

this

intent.

See,

e.g.,

Metropolitan

Lif~

Insurance

co.

y.

Taylor,

481

U.S.

58,

107

S.Ct.

1542,

95

L.Ed.2d

55

(1987);

Bartholet

v.

Reisha.uer AG.,

953

F.2d

1073

(7th

Cir.l992).

Environmental

law,

however, remains an area of at least equal importance

to

the

state,

and

CERCLA expressly

left

an

avenue

open to states

to enact their own legislation and stated

Congressional

intent

not to

supersede

such

actions.

See

e.g.

National

Solid

Wastes

Management

Association

v.

Killian,

918

F.2d

671(7th

Cir. 1991)

(en banc)

(“Congress

has in

some

specific

instances

expressed

its

intent

to

preempt

particular

kinds

of

state

and local legislation,

but it has

not yet declared

(or implied) its intention to occupy the

entire field of

environmental regulation”).

The

defendant’s

reliance

on

PMC.

Inc.

v.

Sherwin-

Williams,

Inc.,

151

F.3d

610,

617

(7th

Cir.l998)

is

also

mislaced. In

PMC,

the

Seventh Circuit refused to

allow plaintiff to recover costs

under a common law

contribution

theory when plaintiff

could not recover

those

costs

under

CERCLA,

because

they

were

inconsistent

with the

NCP.

Thus, unlike

here,

there

was

a

clear

conflict

with

the

application

of federal

and

state

law.

Therefore,

the

court

held

that

CERCLA

preempted

Illinois

contribution

law.

However,

the

court

did

not

hold

that

there

was

complete

preemption

by

CERCLA.

This

issue

of

preemption

was

before

the

court

due

to

federal

question

jurisdiction

because

other

federal

claims

were being

litigated. Neither did the

court challenge

the power of states

to enact their

own

environmental

laws.

The

court

stated

that

the

“purpose

of

CERCLA’s savings

clause is to preserve to victims of

toxic

wastes the

other remedies

they may have under

federal

or

state

law.”

PMC,

151

F.3d

at

617.

This

would

seemingly

include

the

right

to

recover

under

the

Illinois

statute.

See

e.g.

Manor

care,

Inc.

v.

Yaskin,

950

F.2d

122

(3d

Cir.199l)

(CERCLA

did

not preempt New Jersey environmental law requiring

responsible

party to

pay for

state’s share

of cleanup

costs);

Boone

v.

DuBose,

718

F.Supp.

479

(M.D.La. 1988)

(complaint

alleging

state

environmental

claims

did

not

“arise

under”

CERCLA).

Furthermore,

the

case

at

bar

is

not

a

common

law restitution

action

which might

disrupt

the

“carefully crafted settlement

system”

established

by

CERCLA but instead

is an environmental statute

specifically enacted

by the

legislature

of Illinois

and

patterned

after

the

corresponding

CERCLA

provision.

I will not preempt a

state provision which mirrors its

federal counterpart because

the defendant anticipates

that some

inconsistency with CERCLA might exist in

its

application.

The

Supreme

Court

has

declared

it

“settled

law”

that

a

federal

defense

to

a

state

law

cause of action, including the

defense of preemption,

is

insufficient

to

establish

federal

question

jurisdiction

under

the

well

pleaded

complaint

rule.

Caterpillar,

482

U.S.

at

392-3.

Unless

Congress

unmistakably manifests

an intent

to make

a

cause of

Page 3

©

2005

ThomsonlWest.

No

Claim to Orig. U.S. Govt. Works.

---

Not Reportedin F.Supp.2d

Page 4

1999

WL 1102740 (N.D.Ill.)

(Cite as:

1999

WL 1102740

(N.D.Ill.))

action

removable

to

federal

court,

a

defense

of

federal

preemption

is

insufficient

to

create

federal

subject

matter

jurisdiction.

Metropolitan

Life

Insurance

Gb.

v.

Taylor,

481

U.S.

58,

66-68,

107

S.Ct.

1542.

95

L.Ed.2d

55

(1987).

After

a

careful

reading

of

the

statutory

language

of

CERCLA,

including

the

cost

recovery

provisions,

I

conclude

that

Congress

did

not

intend

to

preempt

Illinois

environmental legislation providing for

a private cost

recovery

action.

Therefore,

the plaintiffs

motion

to

remand is GRANTED.

1999

WL 1102740

(N.D.Ill.)

Motions, Pleadings

and Filings (Back to

top)

1:99CV04038

(Docket)

(Jun.

17, 1999)

END OF DOCUMENT

©

2005

ThomsonlWest. No Claim to Orig. U.S. Govt. Works.

---

IN

THE

UNITED STATES DISTRiCT COURT

EASTERN DIVISION

cIUCAGO

•1

~i1i4/!7

•j

l,J—~

~

~otto b~

rcmovcd

from

fit~

)

U1’IITED STATES

OF AMERICA,

)

Plaintifl

V.

KERR-MCGEE CHEMICAL

LLC,

(on behalf ofitself

and

its

predecessors Lindsay Light Company,

Lindsay Light & Chemical Company,

American

Potash & Chemical Corporation,

Kerr-McGee

Chemical

Corporation),

)

)

)

)

)

)

)

)

)

)

)

)

Defendant.

)

)

7.004

CWIL

ACTION NO.

04

JUDGE GEITLEMAN

MAGISTRATE

JUDGE LEVJN

RECEIVED

APR

5

—

2004

CONSENT DECREE

JUDGE

GETTLEMAN

Li. S.

DISTRICT COURT

---

TABJ~GFCONTENTS

L

BACKGROUND

.

3

II.

JURISDiCTION

4

III.

~RTIES

BOUND

4

IV.

DEFINITIONS

5

V.

PAYMENT

OF RESPONSE COSTS

7

VI.

FAILURE

TO COMPIX

WiTH

CONSENT

DECREE

8

VII.

COVENANT

NOT

TO

SUE

BY

PLAINTWF

to

VIII.

RESERVATIONS

OF

RIGHTS

BY

UNITED

STATES

10

IX.

COVENANT

NOT

TO

SUB

BY

SETTLING

DEFENDANT

11

X.

EFFECT

OF

SETTLEMENT/CONTRIBUTION

PROTECTION

.

.

.

XI.

ACCESS

TO

INFORMATION

XII.

RETENTION

OF RECORDS

16

Xffl.

NOTICES

AND

SUBMISSIONS

17

•XIV.

•

RETENTION

0FJ1,JBJSDICTION

19

‘fljTEGRATION

19

XVI.

LODGING

AND

OPPORTUNITY

FOR

PUBLIC

COMMENT

19

Xvii

~JGNATORIES/SERV1CE

19

XVIII.

FINAL

JUDGMENT

20

---

•

iN

THE

UNITED STATES

DISTRICT COURT

FOR

THE NORTHERN DISTRICT

OF

ILLINOIS

-

•

EASTERNDiVISION

)

UNITED

STATES

OF

AMERICA,

)

)

Plaintifi;

)

)

)

CIVIL

ACTION NO.04

C

2001

)

KERR-MCGEE CHEMICAL

LLC,

)

JUDGE GETTLEMAN

(on behalf ofitself

and

its

)

predecessors Lindsay Light Company,

•

)

MAGISTRATE

JUDGE LEVThI

Lindsay

Light

& Chemical Company,

)

American

Potash &

Chemical Corporation,

)

Kerr-McGee Chemical Corporation),

)

)

•

Defendant.

)

•

I,

BACKGROUIW

A.

The United

States of

America (“United

States”), on behalf ofthe Administrator ofthe

United States Environmental Protection Agency (“EPA’~),filed a complaint

and

an amended

complaint

in this matter

pursuant

to Section 107 ofthe Comprehensive

Environmental

Response,

Compensation,

and Liability

Actof 1980,

42

U.S.C.

§

9607, as amended (“CERCLA”), seeking

•

reimbursement of response

costs incurred

or to be

incurred for response actions taken at or in

connection with the release or threatened release of

hazardous

substances at certain

Operable

Units

County, illinois (“the Site”).

---

•

B.

The defendant that

has entered

into

this

Consent Decree

(“Settling Defendant”)

does

not

admit any liability

to

Plaintiff arising

out ofthe

transactions

or

occurrences alleged in the

complaint

and

amended

complaint.

C.

The United States

and

Settling Defendant agree,

and this Court

by entering

this

Consent

Decree finds, that this

Consent Decree

has been

negotiated by the

Parties in

good

faith,

that

settlement of

this matter

will avoid prolonged

and complicated

litigation between

the Parties,

and

that

this

Consent Decree is

fair, reasonable,

and in

the public interest.

•

THEREFORE, with

the consent ofthe

Parties

to

II.

JURISDICTION

1.

This Court hasjurisdiction

over the subject

matter

of

this

action pursuant

to

28

U.S.C.

§~

1331

and

1345

and

42 U.S.C.

§~

9607

and

9613(b)

and

also

has personal jurisdiction

over

Settling Defendant.

Solely for the

purposes

of

this

Consent Decree

and

the

underlying

complaint, Settling Defendant waives all objections

and

defenses that it mayhave tojurisdiction

ofthe Court or to venue

in

this

District.

Settling Defendant shall not challenge the terms of

this

Consent

Decree

or

this

Court’s jurisdiction to enter

and

enforce

this

•

III.

PARTIES BOUND

2.

This Consent

Decree is binding upon the

United States and

upon

Settling

Defendant

and

its successors

and assigns.

Any

change in

ownership

or corporate or other

legal status,

including but not limited to,

any

transfer ofassets or real or personal property, shall in no way

alter the status

or responsibilities ofSettling Defendant

under this

Consent Decree.

4

---

•

IV.

D~FIN1TIONS

3.

Unless otherwise expressly provided .herein,- terms used in

this

Consent Decree that

are

defined in CERCLA

or in

regulations

promulgated

under CERCLA shall have the

meanings

assigned

to them in CERCLA or in such regulations.

Wbenever terms listed

below

are used in

this

Consent Decree, the following definitions

shall

apply:

a.

“CERCLA”

shall mean

the Comprehensive

Environmental

Response,

Compensation1

and Liability

Act 011980,

as

amended,

42 U.S.C.

§

9601,

etseq.

b.

“Consent

Decree”

shall mean this

Consent Decree.

c.

“Day”

shall mean a

calendar

day.

In computing

any

period

of

time

under this

Consent Decree, where the last

day

would fall on a Saturday, Sunday, or

federal

holiday,

the

period shall

run until the close ofbusiness of

the

next working day.

d.

“DOJ”

shall mean

the

United

States Department of

Justice and any

departments, agencies or instrumentalities ofthe United States.

e.

“EPA” shall mean the

United

States

Environmental

Protection Agency

and any

successor departments,

agencies or

instrumentalities

of theUnited States,

f.

“EPA

Hazardous

Substance Superfund” shall

mean

the

Hazardous

Substance

• Superfund established by

the

Internal

Revenue Code, 26 U.S.C.

§

9507.

g.

“interest” shall

mean

interest at

the

rate

specified

for interest on investments of

the EPA

Hazardous

Substance Superfund established by26 U.S.C.

§

9507,

compounded

annually

on October

1 ofeach year, in accordance with 42

u.s.c.

§

9607(a).

The applicable rate

of interest shall be the rate in effect at the time the interest accrues.

The rate ofinterest is subject

to change on October

1 ofeach

year.

•

S

---

h.

“Operable Unit

00”

of

the

Lindsay

Light

11 Superfund Removal

Site or

“OU 00”

shall mean the

propertyknown

as 316 B.

Illinois

St.

and

which is

bounded by

North

McClurg Court,

East

Illinois

Street,

North

Columbus

Drive and

East

Grand

Avenue in

the City of

Chicago,

Cook

County, illinois,

i.

“Operable Unit 01” ofthe

Lindsay Light U Superfund Removal

Site or “OU

01”

shall mean property located at 200

East illinois

St. that

bears

the Cook

County Assessor’s Parcel

Number 17-10212019 thatis

bounded

by

East

illinois Street, North Columbus

Drive, East Grand

Avenue,

and

St. Clair Street in the

City

ofChicago, Cook

County, Illinois.

The

buildings located

onthe northwest

corner

of

Grand

Avenue

are

not

a part

ofParcel 1740212019

and are

not a

part

ofOU

01.

j.

“Operable Unit 02”

associated with

the Lindsay Light II

Superfund

Removal

Site or “OU

02”

shall mean a portion ofthe Beverly Sand

and Gravel

pit located in the

southwest

quarter

of

Section

30

and

the northwest quarterofSection 31, T42N,

R9E, Elgin,

Illinois.

k.

“Operable Unit

03” associated

with

the Lindsay

Light

II Superfiind Removal

Site or “OU 03”

shall mean

property

known

as 341

E.

Ohio St. that is bounded on

three sides

by

Grand Avenue, McClurg Court

and

Ohio Street in the City of

Chicago,

Cook County,

Illinois.

1.

“Paragraph”

shall

mean

a portion of

this

Consent Decree identified by an

Arabic numeral or an upper or lower

case

letter.

m.

‘Parties” shall mean the

United

States

and

Settling Defendant.

n.

“Past Response

Costs”

shall

mean all costs, including but not

limited

to

direct

and

indirect costs, that EPA

has

paid at or in connection with Operable

Units

00, 01,

02,

and 03

6

---

through

December 31, 2003,

and all

costs,

including

but not

limited

to

direct and indirect costs,

that DOJ on

behalf

ofEPA,

has paid

at or

in.

connectiqn

with

DJNumbers 90-11-3-1313,

90-11-3-1313/1,

and

90-11-3-1313/2

through May

29,

2004, plus

accrued

Interest

on

all

such

costs

through

those dates.

o.

“Plaintiff” shall meanthe United

States.

p.

“Section” shall mean a portion of

this

Consent Decree

identified

by a

Roman

numeral.

q.

“Settling Defendant” shall

mean

Kerr-McGee

Chemical LLC.

r.,

“Site”

shall

mean the Lindsay Light II SuperfundRemoval Site, located in

the

Streeterville neighborhood of

downtown

Chicago, Cook County, Illinois.

The Site is comprised

ofthe properties at OU 00

and

OU01.

a.

“United

States”

shall

mean

the

United

States of

America,

including its

departments, agencies

and

instrumentalities.

0•••

v•

PAYMENT

OF RESPONSE COSTS

4.

~ynient

ofPast

Response

Costs to

EPA.

Within

30

days of

entry

of

this Consent

Decree,

Settling:Defendant

shall pay to EPA $640,000.

5.

Payment shall

be made byFedWire

Electronic Funds Transfer(“EFF”) to

the U.S.

Department of

Justice account

in accordance

with EFF instructions provided

to

Settling

Defendant bythe

Financial

Litigation Unit of the U.S. Attorney’s Office in the Northern District

ofIllinois

following entry of

the

Consent Decree.

6.

At the time ofthe payment, Settling Defendant shall also send notice

that

the payment

has

been made to EPA

and

DOJ in accordance with Section Xffl (Notices

and

Submissions).

7

---

Such notices shall reference the

EPA

Region

and

Site/Spill

Identification Number 05 YT, DOJ

case numbers

90-11-3-1313, 90-11-3-1313/1,90-11-3-1313/2,

and the

civil

action

number.

7.

The total

amount

to be paid

pursuant

to

Paragraph

4

shall

be deposited in

the Lindsay

Light

II Special Account within the EPA

Hazardous

Substance Superfund to be retained

and used

to conduct or finance response actions at or in connection

with

the.Site, or to be

transferred

by

EPA to the EPA

Hazardous

VI.

FAILURE TO COMPLY WITH CONSENT DECREE

8.

Interest on Late Payments.

If

Settling

Defendant fails to

make

the payment

under

Paragraph

4 (Payment ofResponse Costs) bythe required due date, Interest shall continue to

accrue

on the

unpaid balance through

the date ofpayment.

9.

Stipulated

Penalty.

a.

If

any

amounts

due

under Paragraph

4

are

not paid by

the

required

date,

Settling Defendant shall be in violation of

this

Consent Decree

and shall

pay to EPA, as a

stipulated penalty,

in addition to the Interest

required

by

Paragraph

8, $1,000

per

violation

per

day

that such payment is

late.

b.

Stipulated penalties

are

due

and

payable within 30

days

ofthe date ofthe

demand for payment ofthepenalties by EPA.

All

payments to EPA

under this

Paragraph

shall

be

identified

as “stipulated penalties”

and

shall be made by

certified

or

cashier’s

check made payable

to “EPA

Hazardous Substance

Superfund.”

The check, or a

letter acôompanying

the

check, shall

reference the name

and

address of the

partymaking

payment,

the

Site name, the EPA Region

and

8

---

Site Spill ID Number

O5YT,

DOJ

Case

Numbers

90-11-3-1313.90-11-3-1313/1, 90-11-3-1313/2,

and

the

civil

action

number~Settling Defendant shall

send the

check (and any

accompanying

letter)

to:

EPA

Hazardous Substances

Superfund

U.S

EPA Superfund Accounting

P.O. Box 70753

)

Chicago,

IL

60673

/

c. At the

time

ofthepayment,

Settling Defendant shall also send notice that

payment has

been

made

to EPA

and

DOJ

in accordance with Section XIII (Notices

and

Submissions).

Such notice shall reference

the

EPA

Region and

Site/Spill ID

Number O5YT,

DOJ Case

Numbers

90-11-3-1313, 90-11-3-1313/1, 90-11-3-1313/2,

and the civil action number.

d.

Penalties shall accrue as provided in this Paragraph

regardiess

ofwhether EPA

has notified

Settling Defendant ofthe violation or madea demand for payment, but

need

only be

paid

upon demand.

All

penalties shall begin

to

accrue

on the day after payment is due

and shall

continue

to

accrue through the

date ofpayment.

Nothing herein shall

prevent

the

simultaneous

accrual ofseparate penalties

for separate violations of

this

Consent

Decree.

10.

Ifthe

United

States

brings

an action

to

en.force this Consent Decree, Settling

Defendant shall reimburse

the

United

States for

all

costs

of such action, including but not

limited

to costs of

attorney time.

11.

Payments made under this Section shall be in addition to any

other remedies or

sanctions available to Plaintiff by virtue

of Settling Defendant’s

failure

to comply with the

requirements of

this

Consent

Decree.

.9

---

12.

Notwithstanding any

other provision of

this

Section

theUnited States

may,

in its

unreviewable discretion,

waive payment of

any portion

of

the stipulated

penalties that have

accrued pursuant

to

this

Consent Decree.

Payment

ofstipulated

penalties

shall

not excuse

Settling

Defendant from payment as required

bySection V or

from performance

of

any

other

requirements

ofthis Consent Decree.

‘/LL

COVENANT

NOT TO

SUE

BY

PLAINTWF.’

13.

Covenant Not to Sue

Lw

United

States.

Except as

specifically provided in

Section VIII

(Reservations ofRights

by

United States), theUnited

States

covenants

not to

sue

or to

take

administrative action against Settling Defendant

pursuant

to Section

107(a) of

CERCLA,

42

U.S.C.

§

9607(a), to recover Past Response Costs.

This covenant

not to sue

shall take effect upon

receipt by EPA of

all payments required

bySection V,

Paragraph

4

(Payment

of

Response

Costs)

and any amount

due under Section Vi

(Failure

to Comply

with Consent Decree).

This covenant

not

to sue is conditioned

upon the satisfactory performanceby

Settling Defendant

of

its obligations

under this

Consent Decree.

This covenant not to sue extends only to Settling

Defendant

and

does

not extend to

any other

person.

VIII.

RESERVATIONS

OF RIGHTS BY

UNITED

STATES

14.

The

United

States reserves,

and this

Consent

Decree

is without prejudice to,

all rights

against Settling Defendant with

respect

to

all matters

not expressly included within the

Covenant

Not to Sue by

Plaintiff

in Paragraph

13.

Notwithstanding

any otherprovision

of

this

Consent

Decree, the United States reserves all

rights

against Setting Defendant

with

respect to:

a.

liability for failure ofSettling Defendant to meet a requirement of

this Consent Decree;

10

---

b.

liability for costs

incurred

or to be

incurred

bythe

UnitedStates

that

are

not

within the

definition

of

Past Response

Costs;.

-

c.

liability for injunctive

relief

or administrativeorder

enforcement under

Section

106 ofCERCLA, 42 U.S.C.

§

9606;

d.

criminal liability

and

e,

liability for

damages for injury

to,

destruction of,

or loss ofnatural resources,

and

for the costs of

any natural resource damage assessments.

IX~COVENANTNOT

TO

SUE

BY SETTLING

DEFENDANT

15.

Settling

Defendant

covenantsnot to sue

and agrees

not to

assert any claims

or causesof

action against,

the United States or its

contractors

or employees,

with

respect

to

Past Response

Costs or

this

Consent Decree, including but not limited to:

a.

any direct

or indirect

claim

for

reimbursement

from

the

Hazardous Substance

Superfund based

on Sections

106(b)(2),

107, 111,

112, or 113 ofCERCLA, 42 U.S.C.

§~

9606(b)(2), 9607, 9611, 9612,

or 9613,

or

any

other provision oflaw;

b.

any claim

arising

out ofthe response actions at OUs 00, 01,

02, or 03 for which

the

Past

Respónsè Costs were incurred, including

any

claim under the

United

States

Constitution,

the Constitution of

the

State ofillinois,

theTucker Act, 28

U.S.C.

§

1491, the Equal Access to

Justice Act, 28 U.S.C.

§

2412, as amended,

or at common law; or

c.

any

claim

against

the United

States pursuant to

Sections

107

and

113 of

CERCLA, 42 U.S.C..

§~

9607

and

9613,

relating

to Past Response Costs.

16.

Nothing in

this

Consent Decree

shall

be deemed to constitute approval

or

preauthorization of a claim

within

the meaning ofSection

111

ofCERCLA, 42 U.S.C.

§

9611,

or

11

---

40

C.F.R. 300.700(d).

17.

Settling Defendant agrees not to assert any-claims and to waive all claims

or causes of

action that

it may have for all

matters

relating to OUs 00,01,

02,

and/or

03, including for

contribution, against

any person where

the person’s liability to Settling Defend~nt

with respect

to

OUs 00, 01, 02,

and/or

03

is based solely on having

arranged

for

disposal

or

treatment,

or for

•transport

for disposal or treatment, of

hazardous substances

at OUs 00, 01,02,

and/or

03,

or

having

accepted

for

transport

for disposal or treatment of

hazardous substances at

OUs 00, 01,

02,

and/or

03, if all or

part

ofthe

disposal, treatment,

or

transport

at the OU in question

occurred

before

April

1,

2001,

and the total amount

of

material containing hazardous

substances contributed by

such

person to the

OU in question

was

less

than

110

gallons

of

liquid materials

solid materials.

18.

The

waiver

in

Paragraph

17

shall

not

apply with respect

to

any

defense,

claim,

or

cause

ofaction that

Settling Defendant

mayhave

against any

person meeting the above criteria if such

person asserts a claim or

cause ofaction relating

to OUs 00, 01, 02,

and/or 03

against Settling

Defendant

This

waiver also shall

not

apply to~y

claim

or

cause

of

action

againstany.person

meeting

the

above criteria

if EPA determines:

a.

that such

person has failed to comply with any

EPA

requests

for

information

or

administrative subpoenas issued pursuant to Section

104(e)

or 122(e) of CERCLA, 42 U.S.C.

§~

9604(e)

or 9622(e), or Section 3007 ofthe Solid Waste Disposal Act (also

known

as the

Resource Conservation

and Recovery Act

or

“RCRA”),

42 U.S.C.

§

6927, or

has impeded

or is

impeding,

through

action or inaction, theperformance ofa response action or natural resource

restoration with respect to OUs 00,

01, 02,

and/or

03, or

has

been convicted ofa

criminal violation

•

12

---

for the conduct to which

this waiver

would apply

and that conviction has

not

been

vitiated on

appeal or otherwise; or

•...

-

b.

that the

materials containing hazardous substances contributed to

the

OU

in

question

bysuch

person have contributed significantly,

or

could contribute significantly,

either

individually

or in

the aggregate, to the cost of

response action

or natural

resource

restoration at

the

OU

in question.

X.

19.

Except as provided in

Paragraph 17 (Non-Exempt Dc Micromis

Waiver), nothing in

this Consent Decree shall be construed to create

any rights

in, or grant

any cause

of

action

to,

any

person not a

Party

to

this

Consent Decree.

Except as

provided

in Paragraph

17 (Non-Exempt De

Microinis Waiver), the Parties expressly

reserve any and all

rights (including, but not

limited

to,

any right

to contribution), defenses, claims,

demands,

and

causes of

action

that theymayhave

with

respect to

any

matter,

transaction,

or occurrence relating in

any

way to OUs 00,

01, 02,

and/or 03

against

any

person not a

Party

hereto.

•20.

The Parties agree,

and

by

entering this Consent Decreethis

Court finds, that

Settling

Defendant is entitled, as ofthe date of

entry

of

this

Consent Decree, to protection from contribution

actions or claims

as provided by Section 113(0(2) ofCERCLA, 42 U.S.C.

§

9613(0(2),

for

“matters addressed” in

this

Consent Decree.

The

“matters addressed” in this

Consent

Decree are

Past

Response Costs.

21.

Settling Defendant agrees that, with respect to any suit or claim for contribution

brought by it for matters related to

this

Consent Decree, it will

noti1~’

EPA

and

DOJ

in

writing

no

later

than

60

days prior to the initiation ofsuch suit or

claim.

Settling Defendant also

agrees that,

13

---

with respect to

any

suit or claim

for contribution brought against it for

matters related

to

this

Consent Decree, it will

notify

EPA

and

DOJ in

writing

within

10 days

of

service,

ofthe

complaint

or

claim

upon it.

In

addition, Settling Defendant shall notifyEPA and

DOS

within

10 days of

service

or receipt of

any Motion

for

Summary

Judgment,

and within

10 days of

receipt

of

any order

from a court setting a case for trial, for

matters related

to

this

Consent

Decree.

22.

In

any

subsequent

administrative

or

judicial proceeding initiated

by

the

United States

for injunctive relief, recovery ofresponse costs, or other

relief relating to

the Site

and/orany areas

where

hazardous substances from

Lindsay Light’s operations at 316 E.

illinois

St.

have come to be

located, Settling Defendant shall not

assert, and

may

not

maintain, any

defense or claim

based

upon the principles ofwaiver,

resjudicata,

collateral estoppel, issue

preclusion, claim-splitting, or

other defenses based upon

any

contention that the claims

raised

bythe

United

States in

the

• subsequent proceeding were or should have been brought in the

instant case; provided, however,

that nothing in

this

Paragraph affects the

enforceability o~the

Covenant

XI.

ACCESS TOINFORMATION

23.

Settling Defendant shall provide to

EPA, upon request, copies of

all records, reports,

or

information (hereinafter referred

to as “records”) within its possession or control or thatof

its

contractors

or agents relating to

activities

at OUs 00, 01,

02, and/or 03,

including,

but not

limited

to, sampling, analysis,

chain

ofcustody records, manifests, trucking logs, receipts,

reports,

sample

traffic

routing, correspondence,

or other documents or information related to OUs 00, 01, 02,

andlor

03.

•

14

---

24.

p,fidential Business Information and Privilegçd Documents.

a.

Settling Defendant

may

‘assert business confidentiality claims coveringpart

or all

of

the records submitted

to

Plaintiff under this

Consent Decree to the extent

permitted

by

and in

accordance with Section

104(e)(7) ofCERCLA, 42 U.S.C.

§

9604(e)(7),

and

40

C.F.R.. 2.203(b).

Records determined to be confidential byEPA will be accorded the protection specified in 40

C.KR.

Part

2, Subpart B.

If no

claim

of

confidentiality accompanies records when

they

are

submitted

to EPA or if

EPA has notified Settling Defendant that

the records

are

not

confidential

under

the

standards

of

Section

104(e)(7) ofCERCLA or 40 C.F.R.

Part

2 Subpart B,

the

public

maybe

given access

to such records without further notice to Settling Defendant.

b.

Settling Defendant

may

assert

that

certain records are privileged under

the

attorney-client privilege or ‘any

otherprivilege recognized

by

federal

law.

If

Settling Defendant

asserts

such a privilege in lieu ofproviding

records, it

shall provide Plaintiff with

the

follOwing:

1)

the

title ofthe record; 2)

the

date ofthe

record;

3) the

name, title, aThliation

(e.g.,

company or

firm), and address

of the author ofthe record; 4)

the name and title

of

each addressee and recipient;

5)

a

description ofthe subject ofthe record; and

6)

the privilege

asserted,

Ifa claim

ofprivilege

applies only to a portion ofa record, the record

shall

be provided to

Plaintiff

in

redacted form to

mask

the privileged

information

only.

Settling

Defendant

shall

retain

all records that

it

claims

to

be privileged

until

the

United

States

has had a reasonable opportunity

to

dispute

the privilege

claim

and any such

dispute

has

been

resolved

in

the

Settling Defendant’s

favor.

However, no

records

created or generated

pursuant

to the requirements ofthis or

any other settlement

with

the

EPA

pertaining

to the Site

shall be

withheld

on the

grounds

that they

are privileged.

15

---

25.

No

claim

of

confidentiality shall

be

made with respect

to

any

data, including but not

limited to, all

sampling, analytical,

monitoring, hydrogeologic, scientific,

chemical,

or

engineering

data, or

any

XII.

RETENTION OFRECORD~

26.

Until

10

years

after the entryof

this

Consent Decree, Settling

Defendant shall preserve

and retain all records now in its possession

or control, or

which

come into

its

possession or controls

that

relate in

any manner

to response

actions taken.

at OUs 00,01,02,

and/or

03

or the liability of

any person under

CERCLA

with respect

to OUs 00,

01, 02,

and/or 03,

regardless

of

any corporate

retention policy

to

the contrary.

27.

After

the conclusion ofthe

10-year

document retention period in the preceding

paragraph, Settling Defendant shall notify

EPA

and

DOJ

at least 90 days prior to thedestruction of

any

such records,

and, upon request

by EPA or

DOJ, Settling

Defendant

shall deliver any

such

records to EPA.

Settling Defendant

mayassert that certain records are privileged under

the

attorney-client privilege or

any

other privilege

recOgnized

by

federal

law.

IfSettling

Defendant

asserts

such a privilege, they shall provide

Plaintiff with

the following:

1) the title ofthe

record;

2) the date ofthe record; 3) the name, title, affiliation

(e.g.,

company or finn),

and address

of

the

author ofthe record; 4) the

name and

title ofeach

addressee and recipient;

5)

a description

of

the

subject ofthe record;

and 6) theprivilege asserted.

If a claim

of

privilege

applies only to

a

portion

of a

record, the

record

shall

be

provided

to

Plaintiff

in

redacted

form to

mask

the privileged

information only.

Settling Defendant shall retain all records that it

claims

to be privileged

until the

United

States

has had

a reasonable

opportunity

to dispute

the

privilege claim

and any

such dispute

has

been resolved in the Settling Defendant’s favor.

However, no records created or generated

16

---

pursuant

to the

requirements

of

this

or

any

other settlement

with

the EPA pertaining to the Site

shall be

withheld

on

the

grounds

that they are

privileged.

28.:

Settling Defendant

hereby

certifies that,

to the best of

its

knowledge

and

belief, after

reasonable

inquiry,

it has not

altered, mutilated, discarded, destroyed

or

otherwise disposed

of

any

records,

reports, orinformation relating

to

its

potential liability regarding the Site since

notification

ofpotential

liability

by

the

United States or the State or the

filIng

of

suit

against it

regarding the

Site

and

that it

has fully complied with any and

all EPA

requests

for

inforn~ationpursuani

to

Sections

104(e)

and

122(e) ofCERCLA, 42 U.S.C.

§~

9604(e)

and

9622(e),

and

Section

3007

of

RCRA, 42 U.S.C.

§

XIII.

1~OTICESAND SUBMiSSIONS

29.

Whenever, under

the terms of

thIs

Consent

Decree, notice

is

required

to be

given

or a

document is

required

to be sent byone

party

to

another,

it shall

be

directed

to

the individuals

at

the

addresses

specified below, unless those

individuals

or theirsuccessors give notice ofa change to

the

other

party in writing.

Written notice as

specified herein shall constitute

complete satisfaction

of

any written

notice

requirement

ofthe Consent Decree with

respect

to the

United States, EPA,

1)01,

and

Settling Defendant,

respectively.

~jo

the

United

As to DO!:

Chief, Environmental Enforcement

Section

Environment and Natural

Resources Division

U.S.

Department

ofJustice

(DJ #90-11-3-1313/2)

P.O. Box 7611

Washington,

D.C.

20044-7611

17

---

As to EPA:

Mary L. Puighuni

Associate Regional Counsel

U.S. Environmental Protection Agency

Region

5

77 West Jackson Boulevard

Chicago, illinois

60604

Vemeta S.

Simon

OnScene Coordinator

U.S.

Environmental

Protection Agency

Region

S

Mail

77 West Jackson Boulevard

Chicago, illinois

60604

Fredrick A.

Micke

OnScene Coordinator

U.S.

Environmental

Protection Agency

Region

5

Mail

77 West Jackson Boulevard

Chicago, illinois

60604

Regional Financial Management Officer

U.S. Environmental ProtectionAgency

Region

5

Mail

Code MF-10~

77 West Jackson Boulevard

Chicago, illinois

60604

As to Settling Defendant:

T.L. Cubbage,

Esq.

Kerr-McGee Corporation

123 Robert S.

Kerr

Ave.

Oklahoma City, OK

73102

18

I

---

XIV.

RETENTION OFJURISDICTION

30.

This

Court shall

retain jurisdiction

over

this matter

for the

purpose

of

interpreting and

enforcing the

terms

of

this Consent Decree.

•

XV.

INTEGRATION

•

31.

This Consent Decree constitutes

the

final, complete

and

exclusive agreement

and

understanding

with

respect

to the settlement embodied in

this Consent Decree.

The

Parties

acknowledge

that

there are

no representations, agreements or

understandings relating

to the

settlement other

than

those expressly

contained

in

this

Consent Decree.

XV!.

j~ODGING

ANJ)

OPPORTUNiTY FORPUBLIC

COMMENT

32.

This Consent Decree shall

be lodged

with

the

Court

for

a

period

ofnot less than 30

days for public notice

and comment.

The

United States reserves the right to withdraw

or

withhold

its consent if the comments regarding the Consent Decree disclose

facts

or

considerations which

indicate that this Consent Decree is inappropriate,

improper, or

inadequató.

Settling

Defendant

consents

to

the entry

of

this Consent

Decree without further notice.

33.

If

for

any

reason

this

Court should decline to approve

this

Consent Decree in the

form

presented,

this

agreement is voidable at the sole discretion of

any party and

the

terms

ofthe

agreement

may not be used as evidence in

any

litigation between

theParties.

XVII.

SIGNATORIES/SERViCE

34.

The

undersigned

representative ofSettling Defendant to

this Consent Decree and

the

Deputy Chief,

Environmental

Enforcement Section, Environment

and Natural Resources

Division,

United

States

Department

of

Justice certif~y

that they

are

authorized to enter into the terms

and

conditions of

this

Consent Decree

and

to execute

and

bind legally such

Party

to

this document.

19

---

35.

Settling Defendant

hereby agrees not to oppose entry of

this

Consent

Decree

by

this

Court

or to

challenge any

provision ofthis•Consent Decree, unless the

United States has notified

Settling Defendant

in

writing

that it no longer supports entry ofthe Consent Decree.

•

36.

Settling Defendant

shall

identify, on the

attached

signature page, the

name and address

of

an agent who is authorized to

accept service

ofprocess bymail on behalf

ofSettlingDefendant

with

respect to all matters arising under or relating to

this

Consent Decree.

Settling

Defendant

hereby agrees to

accept

service in

that manner and

to

waiVe

the

formal service requirements set

forth

in Rule

4 ofthe

Federal

Rules ofCivil

Procedure and any

applicable

local rules

of

this Court,

including but not limited to, service ofa summons.

The Parties

agree

that Settling Defendant need

not file an answer to the complaint

or

amended complaint in this action unless

or

until

the

Court

expressly declines to enter

this

Consent Decree.

XVIII.

FINAL JUDGMENT

37.

Upon approval

and

entryof

this

Consent

Decree

bythe Court,

this

Consent

Decree

shall constitute the

final

judgment between the

United

States

and

Settling Defendant.

The

Court

finds that there is no just reason for delay

and therefore enters this

judgment as a final

judgment

under Fed. R. Civ.

P.

54

and

58.

SO

ORDERED

THIS

DAY OF

.

~edStatesDLctJudg~~~

20

---

THE UNDERSIGNED PARTY enters into this Consent Decree in

the

matter ofUnited States v.

Kerr-McGeeChemical

LLCJ

relating to OUs 00,01,02,

and

03

associated with

the Lindsay

Light fl

Superfund Removal

Site.

-

FOR THE UNITED STATES

OF

AMERICA

THOMAS L. SANSONETTI

Assistant Attorney General

Environment

and Natural Resources

Division

United States Department ofJustice

W.

B~EAM1N

FJSHEROW

Deputy~ection

Chief

Enviroxknent Enforcement Section

Environment and Natural Resources

Division

United

States

Department

of

Justice

-

ANNETTE M. LANG

Trial Attorney

Environmental Enforcement Section

Environment and Natural Resources

Division

United

States

Department

of Justice

P.O. Box 7611

Ben

Franklin

Station

Washington,

D.C.

20044

(202) 514-4213

21

---

PATRICK

J.

FITZGERALD

United States

Attorney

Northern District of

Illinois

B~

LD.B1~ObKS

Assistant United

States Attorney

219 South

Dearborn Street

•

Chicago,

Illinois

60604

(312)353-5342

22

---

THE

UNDERSIGNED PARTY enters

into

this Consent

Decree

in the

matter of United

States v.

Kerr-McGee Chemical

LLC,

relating

toOUs 00,01,02,

and

03 associated with the Lindsay Light

1

Superfund

Removal Site.

-

UNITED STATES

ENVIRONMENI’AL

PROTECTION AGENCY

i~4X7$~

RICHA

C. KARL

Acting Director, Superfund Division,

Region

5

U.S. Environmental

Protection

Agency

77 WestJackson Boulevard

Chicago,

Illinois

60604

MARY L ~1JLGHUM

AssociateRegional Counsel

U.S.

Environmental

Protection Agency

Region

5 C-14J

77 WestJackson Boulevard

Chicago. Illinois

60604

23

---

THE

UNDERSIGNED

PARTY

enters

into

this

Consent Decree in

the

matter of

United

States v.

Kerr-McGeeChemicalLLC.

relatingto OUs

0.0,01,02, and

03

associated

with the Lindsay Light U

Superflind Removal Site,

FOR

DEFENDANT KERR-MCGEE

CHEMICAL

LLC (on behalfof

itselfand

its predecessors

Lindsay Light Co., Lindsay

Light

& Chemical Co.,

American Potash &

Chemical

Corp., and I(err-McGee Chemical Corp.)

Date:

•

GEOR

CHRISTIANSEN

Vice President

Kerr-McGee Chemical

LLC

123

Robert S. Kerr

Avenue

Oklahoma

City,

OK

73125

L.~~1.Dy’t

-g,~

Agent Authorized to Accept Service on

Behalf

of

Above-signed

Party:

Name:

Title:

Address:

p.o.

~

a~8c,~

•Okl~L~~~t

CJ*y1

OK

~I~~$$

j,.

ctI~~

‘zr

Ce~j,’$qj

~

(~gf1+~

25

---

CERTIFICATE OF SERVICE

I,

the

undersigned,

on

oath,

state

that

I

have

served

on

the

date

of July

5,

2005,

the

attached Plaintiff’s Motion

to

Dismiss Affirmative Defenses, by U.S.

mail,

upon the

following

persons:

Donald J. Moran

PEDERSEN & HOUPT

161 North Clark Street, Suite 3100

Chicago, Illinois 6060 1-3242

Attorneyfor River East LLC and

Chicago Dock and Canal Trust

John T.

Smith II

COVINGTON

& BURLING

1201

Pennsylvania Avenue N.W.

Washington, D.C.

20004-2401

Attorneyfor Kerr-McGee Chemical LL C

Subscribed to and sworn before me

This.~ffiIayof~iy,

2005.

~1L

~J

Not~Wy

Public

JOHNSON & BELL,

LTD.

55

East Monroe Street, Suite 4100

Chicago, IL 60603

(312) 372-0770

“OFF~TAL~EAL’~

CYNTHIA

LEA

IEMPEL

~

NOTARY PUBLiC

STATE OF !LL1NOIS~

M

Comm~on

Ex

iresiOI2O~O5

Jr.

My commission expires:

Cd~

~

~