BEFORE
POLLUTION
GRAND PIER CENTER LLC and
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO.
as subrogee of Grand Pier Center, LLC
Complainants
V.
THE ILLINOIS
CONTROL BOARD
)
)
)
)
)
)
)
)
PCBO5-157
RECEIVED
CLERK’S OFFICE
SEP 022005
STATE OF ILLINOIS
Pollution Control Board
(Enforcement)
RIVER EAST LLC
CHICAGO DOCKAND CANAL TRUST
CHICAGO DOCKAND CANAL COMPANY)
KERR-MCGEE CHEMICAL LLC
)
Respondents
NOTICE OF FILING
TO: Frederick S. Mueller
Michael P. Connelly
Johnson & Bell, Ltd.
Garret C. Carter
55 East Monroe Street
Connelly Roberts & McGivney LLC
Suite 4100
One North Franklin Street, Suite 1200
Chicago, Illinois 60603
Chicago, IlL 60606
PLEASE TAKE NOTICE that on September 2, 2005, we filed with the Illinois Pollution
Control Board, the attached DEFENDANTS’ ANSWER TO COMPLAINT.
Respectfully submitted,
RIVER EAST L.L.C, AND CHICAGO
DOCK AND CANAL TRUST
Donald J. Moran
Abad Lopez
Pedersen & Houpt
161 North Clark Street, Suite 3100
Chicago, IL
Telephone:
419179.1
60601
(312) 641-6888
‘eir Attorneys
PROOF OF SERVICE
Marisa Perez-Ravelo, a non-attorney, on oath states that she served the foregoing
DEFENDANTS’ ANSWER TO COMPLAINT by enclosing same in an envelope addressed to
the following parties as stated below, and by depositing same in the U.S. mail at 161 N. Clark
St., Chicago, Illinois 60601, on or before 5:00 p.m. on this 2~of September, 2005:
Frederick S. Mueller
Johnson & Bell, Ltd.
55
East Monroe Street, Suite 4100
Chicago, Illinois 60603
Michael P. Connelly
Garret C. Carter
Connelly Roberts & McGivney LLC
One North Franklin Street, Suite 1200
Chicago, IlL 60606
Ma,z4sa Perez-Ravelo
419179,1
-2-
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
RECEIVED
CLERK’S OFFICE
GRAND PIER CENTER LLC and
AMERICAN INTERNATIONAL
)
2005
SPECIALTY
LINES INSURANCE CO.
)
STATE OF ILLINOIS
as subrogee of
Grand Pier
Center,
LLC
)
Pollution Control Board
)
Complainants
)
v.
)
PCBOS-157
(Enforcement)
RIVER EAST LLC
CHICAGO DOCKAND CANAL TRUST
)
CHICAGO DOCKAND CANAL COMPANY)
KERR-MCGEE CHETVIICAL LLC
)
Respondents
ANSWER TO COMPLAINT
NOW COMES Defendants, RIVER EAST L.L.C., CHICAGO DOCK and CANAL
TRUST (collectively “RiverEast”), by and through their attorneys, PEDERSEN & HOUPT,
and hereby submit their Answer to GRAND PIER CENTER LLC and AMERICAN
INTERNATIONAL SPECIALTY LINES INSURANCE CO., as subrogee of Grand Pier
Center, LLC’s Complaint, and in support thereof state as follows:
1.
This is a citizen suit brought to enforce Sections 12(a), 12(d) and 21(e) of the
Illinois Environmental Protection Act (the Act) (415 ILCS
5/
1 et seq.), as amended,
directing Respondents to abate and remediate certain environmental contamination, and for
cost recovery with respect to any costs incurred by Grand Pier Center LLC (Grand Pier) and
American International Specialty Lines Insurance Co. (AISLIC), or to be incurred by Grand
Pier and AISLIC, in performingresponse activities at the site identified by the United States
Environmental Protection Agency (USEPA) as the’ RV3 North Columbus Drive Site (the
RV3 Site) in Chicago, Illinois.
ANSWER:
River East admits that this is a citizen suit brought under the
Illinois Environmantal Protection Act. River East is without
knowledge or information sufficient to form a belief as to the
419079.2
truth of the remaining allegations contained in paragraph 1.
2.
For each of Complainants’ claims, the Illinois Pollution Control Board has
jurisdiction and authority to declare and enter judgment ofthe rights and responsibilities of
the parties to this citizen suit pursuant to 35 IAC 103.200 and Sections 5(d), 3 1(d) and 33(a)
of the Act.
ANSWER:
River East is without knowledgeor information sufficient to form
a belief as to the truth ofthe allegations contained in paragraph
2.
3.
Complainant Grand Pier Center LLC (Grand Pier) is an Illinois limited
liability company, with its principal office in Chicago, Illinois. Grand Pier was issued a
policy ofinsurance by American International Specialty Lines Insurance Co.
ANSWER:
River East is without knowledge or information sufficient to form
a beliefas to the truth of the allegations contained in paragraph
3.
4.
Complainant American International SpecialtyLines Insurance Co. (AISLIC)
is a corporation, with its principal office in New York, New York. AISLIC is subrogated to
certain claims that Grand Pier has against Respondents for damages Respondents caused to
Grand Pier.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
4.
5
Respondent River East LLC, formerly known as CityFront Center LLC, is a
Delaware limited liability company authorized to do business in Illinois, with its principal
office in Chicago, Illinois. River East LLC is sued as successor of and successor in interest
to Respondents Chicago Dock and Canal Trust, and Chicago Dock and Canal Company.
ANSWER:
River East denies that River East LLC is a successor or successor
in interest to Chicago Dock and Canal Trust and Chicago Dock
and Canal Company.
River East admits the remaining
allegations in paragraph
5.
419079.2
2
6.
Respondent Chicago Dock and Canal Trust, an Illinois business trust, is sued
as the successorof and successor in interest to Chicago Dock and Canal Company. Chicago
Dock and Canal Trust has also been known as CityFront Acquisition Trust, an Illinois
business trust.
ANSWER:
River East denies that Chicago Dock and Canal Trust is the
successor and successor in interest to the Chicago Dock and
Canal Company. River East states that Chicago Dock and Canal
Trust merged into CityFront Acquisition Trust, an Illinois
business trust, and that the merged company is known as the
Chicago Dock and Canal Trust. River East further states that
Chicago Dock and CanalTrust acquired theassets of the Chicago
Dock and Canal Company in 1962.
7.
Respondent Chicago Dock and Canal Company was a corporation organized
and existing under and by virtue of a special act of the legislature of the State of Illinois and
authorized to do business in Illinois.
ANSWER:
On information and belief, River East believes that a special act
ofthe Illinois legislature established the Chicago Dock and Canal
Company in 1857 (“CDCC I”). CDCC I was dissolved in 1962.
River East further states that a separate Chicago Dock and Canal
Company was organized in 1962, was organized under the
business corporation act and authorized todo business in Illinois
(“CDCC II”). River East further states the CDCC 11 was
dissolved in 2001.
8.
Respondent Kerr-McGee Chemical LLC, a Delaware limited liability
company authorized to do business in Illinois, is an affiliate of Kerr-McGee Chemical
Corporation, successorof and successorin interest to Lindsay Light and Chemical Company
and Lindsay Light Company.
419079.2
3
ANSWER:
River East is without knowledgeor information sufficient to form
a belief as to the truth ofthe allegations contained in paragraph
8.
The RV3 North Columbus Drive Site
9.
Through a series of administrative orders and amendments, the USEPA has
identified land generally located at 316 East Illinois Street, Chicago, Cook County, Illinois
as the Lindsay Light H Site. Lindsay Light II is situated in an urban area known as
Streeterville, and is surrounded by commercial and residential buildings. The Chicago River
is located approximately
¼mile
south, and Lake Michigan is about 1 mile east of the
Lindsay Light II Site.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
9.
10.
RV3 North Columbus Drive Site (the RV3 Site), the parcel ofland pertinent
to this citizen suit, is identified by the USEPA in an amendment to its administrative orders
issued for the Lindsay Light H Site. The RV3 Site is generally located at 200 East Illinois
Street in Chicago, Cook County, Illinois, and is bounded by North Columbus Drive, East
Grand Avenue, North St. Clair Street, and East Illinois Street.
ANSWER:
River East is without knowledge or information sufficient to form
a beliefas to the truth ofthe allegations contained in paragraph
10.
11.
The RV3 North Columbus Drive Site is a “site” as that term is defined in
Section 3.460 ofthe Act (415 ILCS 5/3.460).
ANSWER:
River East is without knowledge or information sufficient to form
a beliefas to the truth of the allegations contained in paragraph
11.
Contamination of the RV3 Site
12.
From at least 1915 to 1933, the Lindsay Light Company was headquartered
at 161 East Grand Avenue, and manufactured incandescent gaslight mantles at 161 East
419079.2
4
Grand Avenue and/or at 316 East Illinois Street, at and adjacent to the Lindsay Light H and
the RV3 Sites.
ANSWER:
River East is without knowledge or information sufficient to form
a beliefas to the truth of the allegations contained in paragraph
12.
13.
The principal ingredient in gaslight mantle manufacture is thorium. Thorium
occurs principally as the parent radionuclide thorium-232 in association with its daughter
products in a decay sequence known as the Thorium Decay Series. It is believed that the
principal source ofcontamination at the RV3 Site is the Thorium Decay Series.
ANSWER:
River East is without knowledge or information sufficient to form
a beliefas to the truth of the allegations contained in paragraph
13.
14.
Between at least 1915 and 1933, Lindsay Light Company operated its
incandescent gaslight mantle manufacturing business at the Lindsay Light H Site, and
arranged for the disposal of hazardous substances at the Lindsay Light II Site, including the
RV3 North Columbus Drive parcel, the parcel pertinent to this citizen suit.
ANSWER:
River East is without knowledge or information sufficient toform
a beliefas to the truth of the allegations contained in paragraph
14.
15.
Chicago Dock and Canal Company owned the RV3 North Columbus Drive
parcel of the Lindsay Light H Site at the time hazardous substances were disposed at the
RV3 Site by Lindsay Light Company.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth ofthe allegations contained in paragraph
15.
Remediation of the RV3 Site
16.
Through a series ofadministrative orders, the USEPA ordered Chicago Dock
and Canal Trust and Ken-McGee Chemical LLC to remove the hazardous substances
contamination at the Lindsay Light II Site, and in an amendment, ordered River East LLC,
419079.2
5
Kerr-McGee Chemical LLC and Grand Pier CenterLLC to removethe hazardous substances
contamination at the RV3 North Columbus Drive Site.
ANSWER:
River East is without knowledge or information sufficient toform
a belief as to the truth of the allegations contained in paragraph
16.
17.
The remediation work performed at the RV3 Site was conducted under the
Unilateral Administrative OrderDocket Number V-W-96-C-353 issued June 6, 1996 (UAO)
and the First Amendment to that Order dated March 29, 2000. The work was conducted in
accordance with the Work Plan for Site Radiation Survey and Excavation Soil Management
dated March 20, 2000 and approved by the USEPA on March 23,2000.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth ofthe allegations contained in paragraph
17.
18.
Thereafter, the USEPA required additional work, which was conducted in
accordance with the Sidewalk Remediation Work Plan dated March 9, 2001 and approved
by USEPA on April 11,2001.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
18.
19.
The First Amendment to the UAO required Grand Pier, River East LLC, and
Ken-McGee Chemical LLC to perform certain removal actions including, but not limited
to, the implementation of a Site Health and Safety Plan, the implementation of an air
monitoring program, the removal of contamination, and the disposal of hazardous
substances.
ANSWER:
River East is without knowledge or information sufficient toform
a belief as to the truth of the allegations contained in paragraph
19.
20.
Grand Pier Center LLC, as the then current owner of the RV3 Site, and
AISLIC, as subrogee of Grand Pier, performed and completed work at the RV3 Site in
accordance with the UAO, the UAO’s First Amendment, and the Work Plans.
419079.2
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ANSWER:
River East
is
without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
20.
21.
The removal activities under the Work Plan began on April 4, 2000, and
Grand Pier Center LLC has been in compliance with the UAO since the UAO was issued to
Grand Pier Center LLC for the RV3 Site.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
21.
22.
A final Closure Report for the area bounded by North Columbus Drive, East
Grand Avenue, North St. Clair Street, and East Illinois Street was prepared by the Project
Coordinator, STS Consultants, Ltd., and submitted to the USEPA on July 2, 2001.
Thereafter, the Final Closure Report Addendum dated August 31, 2004 was submitted to
USEPA.
ANSWER:
River East is without knowledgeor information sufficient to form
a belief as to the truth of the allegations contained in paragraph
22.
23.
USEPA issued Letters ofCompletion on August 26, 2002 and on October 8,
2004 for the work performed according to the approved Work Plans.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth ofthe allegations contained in paragraph
23.
24.
Grand Pier and AISLIC incurred necessary response costs of
approximately$2,300,000 at the RV3 Site, and continue to incur additional costs of response.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
24.
419079.2
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25.
Respondents are liable “persons” as that term is defined by Section 3.3 15 of
the Act (415 ILCS 5/3.3 15) for all costs of response at the RV3 Site.
ANSWER:
River East denies that they are liable persons as defined by the
Act.
Count I
—
Waste Disposal
26.
Complainants incorporate by reference as if fully restated herein, paragraphs
1 through 25, above.
ANSWER:
River East repeats their answers to paragraphs 1 through 25 as
their answers to paragraph 26.
27.
Respondent Kerr-McGee is a “generator” as that term is defined by Section
3.205 ofthe Act (415 ILCS 5/3.205).
ANSWER:
River East is without knowledge or information sufficient to form
a beliefas to the truth of the allegations contained in paragraph
27.
28.
Chicago Dock and Canal Company owned the parcel of land comprising the
RV3 North Columbus Drive Site at the time that Lindsay Light Company disposed of
“hazardous substances,” as that term is defined in Section 3215 of the Act (415 ILCS
5/3.215), at the RV3 Site, including but not limited to thorium.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
28.
29.
Releases ofhazardous substances at the RV3 Site have resulted in radioactive
thorium contamination requiring Grand Pier and AISLIC to incur necessary response costs
to remove the contamination and remediate the RV3 Site, totaling approximately $2,300,000
to date.
ANSWER:
River East is without knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph
29.
419079.2
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30.
Grand Pier was an innocent purchaser ofthe RV3 Site. Grand Pier is a wholly
innocent owner which had no involvement with the improper treatment, storage, disposal or
discharge of thorium contamination at the RV3 Site,
ANSWER:
River East denies the allegations contained in paragraph 30.
31.
The Act prohibits the disposal, treatment, storage or abandonment of any
waste in Illinois, except at a site orfacility which meets the requirements of the Act and of
regulations and standards thereunder. 415 ILCS 5/21(e).
ANSWER:
Paragraph 31 states a legal conclusion to which no response is
required. River East denies that it was in violation of the Act at
any time.
32.
Respondents violated the Act when they improperly disposed, treated, stored
and abandoned solid and hazardous wastes at the Site, a facility which does not meet the
requirements of the Act and regulations and standards thereunder for such disposal,
treatment, storage and abandonment of waste.
ANSWER:
River East denies the allegations contained in paragraph 32.
33.
As a result of Respondents’ violation of the Act, the Site was contaminated,
resulting in Complainants’ incunence of costs in the investigation, removal, and reporting
activities at the Site.
ANSWER:
River East denies that it was in violation of the Act at any time.
River East is without knowledge or information sufficient to form
a belief as to the truth of the remaining allegations contained in
paragraph 33.
34.
Respondents are liable under the Act forComplainants’ costs incurred in the
investigation, removal, and reporting to USEPA of contaminants Respondents failed to
remove from the Site.
ANSWER:
River East denies the allegations contained in paragraph 34.
Count II
—
Contaminant Threat to Groundwater
35.
Complainants incorporate by reference as if fully restated herein,
1 through 34
paragraphs
4 19079,2
9
ANSWER:
River East restates its answers to paragraphs I through 34 as its
answer to paragraph 35.
36.
The Act prohibits any person from causing, threatening, or allowing the
discharge of any contaminant so as to cause or tend to cause water pollution, either alone or
in combination with matter from other sources. 415 ILCS 5/12(a).
ANSWER:
Paragraph 36 states a legal conclusion to which no response is
required. River East denies that it was in violation of the Act at
any time.
37.
Respondents violated the Act when they improperly handled, treated, stored
and disposed of solid and hazardous wastes, thereby causing, threatening, and allowing the
discharge ofcontaminants, so as to cause and tend to cause water pollution at the Site, either
alone or in combination with matter from other sources.
ANSWER:
River East denies that it was in violation of the Act at any time.
38.
As a result of Respondents’ violation of the Act, the Site was contaminated,
resulting in Complainants’ incurrence of costs in the investigation, removal, and reporting
activities at the Site.
ANSWER:
River East denies that it was in violation of the Act at any time.
39.
Respondents are liable under the Act forComplainants’ costs incurredin the
investigation, removal, and reporting to USEPA of contaminants Respondents failed to
remove from the Site.
ANSWER:
River East denies the allegations contained in paragraph 39.
Count III
—
Contaminants Upon Land
40.
Complainants incorporate by reference as if fully restated herein, paragraphs
1 through 39, above.
ANSWER:
River East restates its answers to paragraphs 1 through 39 as its
answer to paragraph 40.
41.
The Act prohibits any person from depositing any contaminants upon the land
in such place and manner so as to create a water pollution hazard. 415 ILCS 5/12(d).
ANSWER:
Paragraph 41 states a legal conclusion to which no response is
419079.2
10
required. River East denies that it was in violation of the Act at
any time.
42.
Respondents violated the Act when they improperly handled, treated, stored
and disposed of solid and hazardous wastes, thereby depositing contaminants upon the land
at the Site in such place and manner so as to create a water pollution hazard.
ANSWER:
River East denies the allegations contained in paragraph 42.
43.
As a result of Respondents’ violation of the Act, the Site was contaminated,
resulting in Complainants’ incurrence of costs in the investigation, removal, and reporting
activities at the Site.
ANSWER:
River East denies the allegations contained in paragraph 43.
44.
Respondents are liable under the Act for Complainants’ costs incurred in the
investigation, removal, and reporting to USEPA of contaminants Respondents failed to
remove from the Site.
ANSWER:
River East denies the allegations contained in paragraph 44.
Dated: September 2, 2005.
Respectfully submitted,
RIVER EAST L.L.C. AND CHICAGO
DOCK AND CANALTRUST
Donald J. Moran
~e~heir
~b
Abad Lopez
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601
Telephone: (312) 641-6888
419079.2
11
