ItECEIVED
l.ERx S OFFICE
BEFORE THE ILLINOIS
SEP~
POLLUTION CONTROL BOARD
STATE
‘‘OF-7ILLJwo~s
2QO~
GRAND PIER CENTER LLC
)
POllUtion Contro:
Boarr
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
)
as subrogee
ofGRAND PIER CENTER LLC
)
)
Complainants,
)
)
PCB 05-157
v.
)
(Enforcement)
)
RIVER EAST LLC
)
CHICAGO DOCK AND CANAL TRUST
)
CHICAGO DOCK AND CANAL COMPANY
)
KERR-McGEE CHEMICAL LLC
)
)
Respondents.
)
TO: Frederick S. Mueller
Donald J. Moran
Bradley Halloran
Daniel C. Murray
Pedersen & Houpt
Hearing Officer
Garrett L. Boehm, Jr.
161 North Clark Street
Illinois Pollution
JOHNSON & BELL, LTD.
Suite 3100
Control Board
55 East Monroe Street
Chicago, IL 60601-3242
James R. Thompson
Suite 4100
Center—Suite 11-500
Chicago, IL 60603-5803
Chicago, IL 60601
NOTICE OF FILING
PLEASE TAKE NOTICE that on September 14, 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 TO DISMISS COMPLAINANTS’ COUNTER-
COMPLAINT AND TO STRIKE COMPLAINANTS’ AFFIRMATIVE DEFENSES, copies
ofwhich are served upon you along with this notice.
Kerr-McGee Chemical LLC
Michael P. Connelly
~
Garrett C. Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
Tele: (312) 251.9600
l:\2470\040\Notice ofFiling —7.09.1405
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS
SEP’ 142005
POLLUTION CONTROL BOARD
STATE OF ILLINOIS
GRAND PIER CENTER LLC
)
Pollution Control Board
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO.
)
as subrogee of Grand Pier Center LLC,
)
)
Complainants/
)
Counter-Complaint Respondents,
)
)
PCB 2005-157
v.
)
(Enforcement)
)
RIVER EAST LLC
)
CHICAGO DOCKAND CANAL TRUST
)
CHICAGO DOCKAND CANAL COMPANY
)
)
Respondents,
)
)
KERR-McGEE CHEMICAL LLC,
)
)
Respondent/
)
Counter-Complaint Complainant
)
)
KERR-McGEE CHEMICAL LLC’S MOTION TO DISMISS
COMPLAINANTS’ COUNTER-COMPLAINT AND TO
STRIKE COMPLAINANTS’ AFFIRMATIVE DEFENSES
RespondentlCounter-Complaint Complainant, Kerr-McGee Chemical LLC
(“Kerr-McGee”), by its attorneys, Connelly, Roberts & McGivney LLC and Covington &
Burling, respectflully requests that the Illinois Pollution Control Board (the “Board”)
Strike Complainants’/Counter-Complaint Respondents’, Grand Pier Center, LLC, and
American International Specialty Lines Insurance Co., as subrogee ofGrand Pier Center
LLC (collectively “Grand Pier”), Affirmative Defenses pursuant to
735
ILCS
5/2-6 15
and Dismiss the “Counterclaim”’ pursuant to Ill. Admin. Code tit.
35,
§
103.206(d) and
Ill. Admin. Code tit. 35,
§
104.4 14.
INTRODUCTION
Grand Pier filed its Complaint on February 25, 2005. The Complaint seeks
damages relating to the operations to remove the contamination at the Chicago property
referred to in the Complaint as the RV3 site. The Complaint contains one count of waste
disposal violations pursuant to 415 ILCS 5/21(e), one count of contaminant threat to
groundwater pursuant to 415 ILCS
5/12(a),
and one count ofcontaminants upon land
pursuant to 415 ILCS 5/12(d). Reimbursement of the response costs that Grand Pier
allegedly incurred during the remediation of the RV3 site is specified among the relief
Grand Pier seeks in its Complaint.
On April 4, 2005, Kerr-McGee filed a Motion to Dismiss the Complaint pursuant
to Ill. Admin. Code tit.
35,
§
104.4 14. On June 13, 2004, following the denial of Kerr-
McGee’s motion to dismiss Grand Pier’s Complaint as duplicative ofongoing litigation
in the United States District Court for the Northern District of Illinois, Kerr-McGee filed
its Answer and Affirmative Defenses to Grand Pier’s Complaint. On that same day, as
required by Ill. Admin. Code tit. 35,
§
103.206(d), Kerr-McGee filed a motion for leave
to file a Counter-Complaint together with a Counter-Complaint. Kerr-McGee’s Counter-
Complaint alleges that Grand Pier violated 415 ILCS 5/21(e) and seeks reimbursement
Ill. Admin Code tit
35,
§
104.414 does not identify “counterclaims” as referred to
in Grand Pier’s Pleading. A counter-complaint, as defined in the Illinois Administrative
Code, and a counterclaim, as defined by
735
ILCS
5/2-608,
are substantially similar. For
purposes ofthis motion, we will assume that Grand Pier erroneously used the term
“counterclaim” rather than “counter-complaint” and, to remain consistent with the
language in the Code, refer to the claim as a counter-complaint throughout this motion.
for the response costs that Kerr-McGee incurred in completing the remediation ofthe
RV3 site. On July 21, 2005, the Board issued its Order accepting Kerr-McGee’s
Counter-Complaint for hearing. (A copy of the Board’s July 21, 2005 Order is attached
as Exhibit A.)
On July
5,
2005, Grand Pier filed a motion to dismiss Kerr-McGee’s affirmative
defenses. On August 12, 2005, Grand Pier filed its Answer and Affirmative Defenses to
Kerr-McGee’s Counter-Complaint. Additionally, Grand Pier, without seeking leave from
the Board as required by Ill. Admin. Code tit.
35,
§
104.4 14, filed a Counter-Complaint
against Kerr-McGee sounding in contribution and, again, seeking to recover its cleanup
costs.
ARGUMENT
I.
Grand Pier Fails to Allege Sufficient Facts to Support its Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Affirmative Defenses.
Illinois is a fact pleading jurisdiction and a plaintiffmust allege facts sufficient to
bring its claim within the realm of the cause ofaction asserted.
Sldodowski v.
Countrywide Home Loans, Inc.
832 N.E.2d 189, 195 (Vt Dist. 2005). An affirmative
defense must be pled with the same degree of specificity required by a plaintiff to
establish a cause ofaction.
International Ins. Co. v. Sargent
&
Lundy,
242 Ill.App.3d
614, 609 N.E.2d 842, 843
(1st
Dist. 1993). Affirmative defenses that do not comply with
Illinois pleading requirements are substantially insufficient in law and may be stricken.
735
ILCS
5/2-615.
Grand Pier’s second affirmative defense alleges that Kerr-McGee’s claims are
barred because Kerr-McGee acted as a volunteer. The third affirmative defense alleges
that Kerr-McGee is estopped from asserting its counter-complaint because Kerr-McGee
3
“acquiesced in and ratified the alleged conduct of Grand Pier.” The fourth affirmative
defense alleges that Kerr-McGee waived its claim under
415
ILCS 5/21(e). The fifth
affirmative defense alleges that Kerr-McGee’s counter-complaint is barred by the
doctrine of unclean hands. The sixth affirmative defense claims that Kerr-McGee’s
injuries were caused by its own negligence. The seventh affirmative defense alleges that
Grand Pier’s acts and omissions were not the proximate cause of Kerr-McGee’s damages.
The eighth affirmative defense alleges that Kerr-McGee’s damages were caused by acts
and omissions of third parties. Finally, the ninth affirmative defense alleges that Kerr-
McGee failed to mitigate its damages.
Grand Pier’s above-mentioned affirmative defenses are not pled with the same
degree of specificity required by a plaintiff to establish a cause of action.
Sargent &
Lundy,
609 N.E.2d at 843. Grand Pier fails to include facts to support its allegations that
Kerr-McGee was a volunteer, that Kerr-McGee assumed the risk or waived its claim,
why Kerr-McGee’s claim is barred by the unclean hands doctrine, how Kerr-McGee’s
own negligence caused it injuries, how the injuries were caused by third parties or how
Kerr-McGee failed to mitigate its damages. Factual support for these affirmative
defenses is absent and, as such, the Board should grant the motion to strike these
affirmative defenses.
II.
Grand
Pier’s Counter-Complaint Should Be Dismissed Pursuant to Ill.
Admin. Code tit. 35,
§
103.206(d).
Section 103.206(d) ofthe Illinois Administrative Code states, in pertinent part,
that “if a party wishes to file a counter-complaint, cross-complaint, or third-party
complaint,
the party must move the Boardfor leave to file the pleading.”
(Emphasis
added). A “Counter-Complaint,” as defined by Section 101.202 of the Illinois
4
Administrative Code, is “a pleading that a respondent files setting forth a claim against a
complainant.” Grand Pier filed its Counter-Complaint without having moved the Board
for leave to file its pleading and therefore its Counter-Complaint must be dismissed
pursuant to Section 103.206(d) ofthe Illinois Administrative Code.
III.
Alternatively,
if the Board Accepts Grand Pier’s Counter-Complaint
Notwithstanding Ill. Admin. Code tit. 35,
§
103.206(d), the Board should
Dismiss Grand Pier’s Counter-Complaint as Duplicative of its Complaint.
If the Board does not dismiss Grand Pier’s Counter-Complaint pursuant to
Section 103 .206(d) ofthe Illinois Administrative Code, the Board should dismiss the
Counter-Complaint as duplicative of Grand Pier’s Complaint. Under Section 103.2 12(b)
of the Illinois Administrative Code, a respondent may, within 30 days after service, move
to dismiss a complaint that is duplicative or duplicitous. A complaint is duplicative or
duplicitous “if it is identical or substantially similar to one brought before the Board or
another forum.” 35111. Adm. Code 101.202.
Grand Pier’s Complaint specifically seeks reimbursement for the costs that Grand
Pier allegedly incurred in the cleanup ofthe RV3 site. The Counter-Complaint seeks
reimbursement of these same costs and, therefore, should be dismissed as duplicative of
the Complaint.
Grand Pier’s Counter-Complaint also is duplicative ofits eleventh Affirmative
Defense. Grand Pier’s Counter-Complaint requests that, in the event Kerr-McGee
receives a judgment in its favor, the Board award “contribution” against Kerr-McGee in
an amount commensurate with its proportion of liability as determined by the trier of fact.
The Illinois Joint Tortfeasor Contribution Act (the “Contribution Act”) provides that
5
“when 2 or more persons are subject to liability in tort arising out ofthe same injury to
person or property.. .there is a right of contribution among them.” 740 ILCS 100/2(a).
Grand Pier’s eleventh affirmative defense asserts that, in the event Grand Pier is
found liable to Kerr-McGee, then Kerr-McGee’s recovery “must be limited to that
portion ofdamages attributable to the conduct of Grand Pier, and which exceeds those
portions of damages attributable to all other persons, including Kerr-McGee. This
defense is essentially a claim for contributory fault. “Contributory fault” is any fault on
the part of the plaintiff which is a proximate cause of the death, bodily injury or property
damages for which recovery is sought. 735 ILCS 5/2-116(b). The plaintiff is barred
from recovering damages if the trier offact finds that the contributory fault of the
plaintiff is more than 50 of the proximate cause of the injury or damage for which
recovery is sought. 735 ILCS 5/2-116(c). Grand Pier has already pleaded an affirmative
defense for contributory fault. Thus, its Counter-Complaint for contribution is
duplicative and should be dismissed.
CONCLUSION
WHEREFORE, the Illinos Pollution Control Board should Strike
Complainants’/Counter-Complaint Respondents’, Grand Pier Center, LLC, and American
International Specialty Lines Insurance Co., as subrogee of Grand Pier Center LLC,
Affirmative Defenses pursuant to 735 ILCS
5/2-615
and Dismiss the Counter-Complaint
pursuant to Ill. Admin. Code tit. 35,
§
103.206(d) and Ill. Admin. Code tit.
35,
§
104.4 14., with prejudice.
6
Respectflflly submitted,
Kerr-McGee Chemical LLC
By~
Michael P. Connelly
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 E. Hogan
COVINGTON & BURLING
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20044-7566
(202) 662-6000
Attorneys for Respondent
Kerr-McGee Chemical LLC
7
ILLINOIS POLLUTION CONTROL BOARD
July 21, 2005
GRAND PIER CENTER LLC, and
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO., as
)
subrogee ofGrand Pier Center LLC,
)
)
Complainants,
)
)
v.
)
PCBO5-l57
)
(Citizens Enforcement
-
Land)
RIVER EAST LLC, CHICAGO DOCK AND
)
CANAL TRUST, CHICAGO DOCK AND
)
CANAL COMPANY, and KERR-MCGEE
CHEMICAL, LLC,
)
)
Respondents.
KERR-MCGEE CHEMICAL, LLC
)
Cross-Complainants,
)
)
v.
)
)
GRAND PIER CENTER LLC, and
AMERICAN INTERNATIONAL
)
PCB 05-157
SPECIALTY LINES INSURANCE CO., as
)
(Citizens Enforcement
-
Land)
subrogee ofGrand Pier Center LLC,
)
)
Cross-Respondents.
)
ORDER OF THE BOARD (by G.T. Girard):
On June 13, 2005, Kerr-McGee Chemical, LLC (Kerr-McGee) filed a counter-complaint
against Grand Pier Center, LLC and American International Specialty Lines Insurance Co.
(complainants). Kerr-McGee alleges that complainants violated Section 2 1(e) ofthe
Environmental Protection Act (Act) (415 ILCS 5/21(e) (2004)). Kerr-McGee alleges that
complainants violated the Act by removing asphalt, concrete and overburden at the site located at
200 East Illinois, in Chicago, Cook County.
Section 3 1(d) ofthe Act (415 ILCS 5/31(d) (2004)) allows any person to file a complaint
with the Board. Section 31(d) furtherprovides that “ujnless the Board determines that such
complaint is duplicative or frivolous, it shall schedule a hearing.”
Id.; see also
35111. Adm. Code
103.2 12(a). A complaint is duplicitous if it is “identical or substantially similar to one brought
2
before the Board or another forum.” 35111. Adm. Code 101.202. A complaint is frivolous if it
requests “relief that the Board does not have the authority to grant” or “fails to state a cause of
action upon which the Board can grant relief”
Ic!.
Within 30 days after being served with a
complaint, a respondent may file a motion alleging that the complaint is duplicitous or frivolous.
35111. Adm. Code 103.212(b). Complainants have not filed motion and there is no evidence
before the Board which indicates that the cross-complaint is duplicative or frivolous.
The Board accepts the cross-complaint for hearing.
See
415 ILCS 5/31(d) (2004); 35 III.
Adm. Code 103.212(a). On May 19, 2005, the Board accepted the complaint for hearing.
See
415 ILCS 5/31(d) (2004); 35111. Adm. Code 103.2 12(a). The Board directs the hearing officer to
proceed expeditiously to hearing.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk ofthe Illinois Pollution Control Board, certilS’ that the Board
adopted the above order on July 21, 2005, by a vote of5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
CERTIFICATE OF SERVICE
I, Lynne Pudlo, a non-attorney, being first sworn on oath, depose and state that I
served the attached documents 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 Franklin Street, Chicago, Illinois,
before 5:00 p.m. on September 14, 2005.
~ e~a
Subscribed and sworn to
before me September 14, 2005.
I:\2470\040\p lead in gs\cos040405
